Vertolo Terms and Conditions

This set of Terms and Conditions (“Agreement“), are agreed to by and between Uber Advising, LLC, doing business as Vertolo (hereinafter “We” or “Us“, “Our”), and you (hereinafter “You” or “Your“).

WHEREAS We are the owner of a software platform (Solution) that mines global data sets and returns highly relevant data back to you based on information that you enter into the Solution at the Vertolo.com (Site) that We market directly and indirectly to end users; and

WHEREAS You wish to utilize Our Solution and We wish to provide You with the Solution pursuant to the terms and conditions set forth in this Agreement;

NOW THEREFORE, in consideration of the mutual undertakings herein contained, the parties hereby agree as follows:

By accepting this Agreement, either by physically or digitally signing this Agreement, paying for Solution with a credit card or by executing an Annual APO (APO), You agree to the terms of this Agreement. If You are entering this Agreement on behalf of a company or another legal Entity (Entity), You represent that You have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the terms “You” or “Your” shall refer to such Entity and its Affiliates.

The following terms and conditions shall govern use of the Solution by You and/or Your Users and that with respect to the Solution, this Agreement shall supersede any other agreements, oral or written, that has been, or may be, agreed to by other Users in your Entity, in connection with their use of the Solution.

If You registered for a Free Trial of Our Solution, this Agreement also governs that Free Trial.

This Agreement is effective between You and Us as of the date You accepted this Agreement, pursuant to the paragraph above.

1. DEFINITIONS

1.1. ” Account” means the account opened by Us under Your subscribed name.

1.2. ” Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject Entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject Entity.

1.3. ” Basic Support” shall mean Your use of the Support pages provided for our Solution and our email response to your questions using our inquiry form. We strive to resolve all support issues within two business days either via information posted on our Support page or via email response directly to You.

1.4. “Documentation” means any written or visual materials, in any format, that are used to explain how our Solution operates and/or are used for training in the use of Our Solution

1.5 “Entity” means a company or other recognized legal business structure that enters into an Agreement with Us.

1.6. ” Fees” shall mean the then current monthly pricing set forth on our website, which can be found at the Pricing tab on www.vertolo.com or the amount set forth in Your valid APO.

1.7. ” Free Trial” sshall mean Your use of the Solution for a limited trial period at no cost to You.

1.8. ” Malicious Code” means viruses, worms, time bombs, trojan horses and other harmful or malicious code, files, scripts, agents or programs.

1.9. ” Annual Purchase Order (APO)” means the ordering documents for purchases hereunder where you purchase a pre-paid 12 month Subscription for one or more Users, including addenda thereto, that are entered into between You and Us from time to time. APOs shall become effective when agreed to by both You and Us or when submitted and payment is received using the standard form through Our Site. The terms of this Agreement shall supersede the terms set forth in Your purchase orders, except as it relates to price and term lengths in excess of twelve (12) months.

1.10. “Monthly Subscription” means the pre-paid monthly purchase made by a User(s) to access Our Solution pursuant to the terms and conditions of this Agreement

1.11. ” Our Basic Support” means the Solution support We provide You at no extra charge which includes using Our commercially reasonable efforts to promptly address and resolve Solution Errors, as set forth in Exhibit A, titled Support.

1.12. “Our Data” means the data generated by Your use of Our Solution and certain data accessed by Our Solution to generate Your search results.

1.13. “Referral” means the process where an existing Subscription User of Vertolo utilizes Vertolo’s approved referral process to solicit a potential user to join Vertolo.

1.14. “Referral Reward” means the value placed on each Referred Subscription User that is shared with the Referrer.

1.15. “Referral Link” means the link generated by Vertolo for a Referrer to send to a potential user, that if utilized by the potential user to become a Subscription User, will generate Referral Rewards pursuant to the Referral Program.

1.16. “Referral Program” is means our only authorized method for Users to earn a Referral Reward.

1.17. “Referred” means the person that entered into a Subscription with Vertolo pursuant to a Referral link sent by an existing Subscription Users.

1.18. “Referrer” means the person that sent a Referral Link to a potential user where the potential user clicked on that link and became a subsequent Subscription User.

1.19. “Subscription” means the pre-paid monthly Subscription or the pre-paid APO made by Users to access Our Solution pursuant to the terms and conditions of this Agreement.

1.20. ” Solution” means the online, Web-based applications, related documentation, and platform that We provide via the Site, including associated offline components, but excluding Third Party Applications.

1.21. ” Solution Errors” means any interruption in the availability of the Solution caused by factors under Our direct control.

1.22. ” Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Solution, and are identified as third-party applications.

1.23. ” Third-Party Data” means certain data owned by others but made available to Us in our provisioning of the Solution and made available to You through your use of Our Solution pursuant to a valid Subscription.

1.24. ” Users” means individuals who are authorized by You to use the Solution and for whom Subscriptions to the Solution have been purchased.

1.25. ” We,” ” Us” or “Our” means Uber Advising, DBA Vertolo directly or through any of its Affiliates.

1.26. ” You” or ” Your” means you individually or the company or other legal Entity for which You are accepting this Agreement and Affiliates of that company or Entity.

1.27. ” Your Data” means all electronic data or information submitted by You to the Solution, including all text, photographs, caricatures, illustrations, designs, charts, graphs, icons, articles, audio clips, video clips, and other materials posted, emailed, transmitted, created, or otherwise utilized by You or Your Users while interacting with the Solution.

2. FREE TRIAL

2.1. If You register on our Site for a Free Trial, We will make all or part of the Solution available to You on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which you registered or are registering to use the applicable Solution or (b) the start date of any paid Subscription to the Solution. Additional terms and conditions may appear on the Free Trial registration web page within the Site. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

2.2 ANY DATA YOU ENTER INTO THE SOLUTION, AND ANY CUSTOMIZATIONS MADE TO THE SOLUTION BY OR FOR YOU, DURING YOUR FREE TRIAL PERIOD MAY BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SOLUTION BEFORE THE END OF THE FREE TRIAL PERIOD. THEREFOR, IF YOU ARE NOT CONVERTING YOUR TRIAL ACCOUNT TO A SUBSCRIPTION THEN YOU SHOULD EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA MAY BE PERMANENTLY LOST.

NOTWITHSTANDING SECTION 10 (WARRANTIES AND DISCLAIMERS), DURING THE FREE TRIAL PERIOD, THE SOLUTION IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY.

3. THE SOLUTION

3.1. Provision of Solution. We shall make the Solution available to You non-exclusively pursuant to this Agreement during your Subscription term, by Your opening an Account with Us and purchasing User Subscriptions as provided in Section 3.2 below. Except as may be otherwise agreed in writing, You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. You can utilize the Solution as long as You abide by the terms of this Agreement, payments are current, and as long as Your Account is not terminated by either party hereto.

3.2. User Subscriptions. Unless otherwise specified in the applicable APO, (i) The Solution is purchased as individual User Subscriptions and may be accessed by no more than the specified number of Users. Additional User Subscriptions may be added at any time by registering additional Users at our Website and paying either the current monthly fee or by executing another annual APO. User Subscriptions are for designated named Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Solution.

3.3. Access and Use of Solution. Subject to You purchasing the User Subscriptions in accordance with clause 3.2 the restrictions set out in this clause 3 and the other terms and conditions of this agreement, We hereby grant to You a non-exclusive, non-transferable right to permit the Users to use the Solution and the Documentation during the Subscription Term solely for Your internal business operations.

3.4. “User Management” In relation to the Users, You agree that:

(a) the maximum number of Users authorized to access and use the Solution and the Documentation shall not exceed the number of User Subscriptions You have purchased from time to time;

(b) You will not allow or suffer any User Subscription to be used by more than one individual User unless it has been reassigned in its entirety to another individual User, in which case the prior User shall no longer have any right to access or use the Solution and/or Documentation;

(c) each User shall keep a secure password for their use of the Solution and Documentation, that each User shall keep their password confidential;

(d) You, if you are acting on behalf of an Entity, shall maintain a written, up to date list of current Users and provide such list to Us within [5] Business Days of the Our written request at any time or times;

(e) You shall permit Us to audit the Solution in order to establish the name and password of each User. Such audit may be conducted no more than once per quarter, at Our expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with Your normal conduct of business;

(f) if any of the audits reveal that any password has been provided to any individual who is not a User, then without prejudice to Our other rights, You shall promptly disable such passwords and We shall not issue any new passwords to any such individual; and

(g) if any of the audits reveal that You have underpaid Subscription Fees to Us, You shall pay to Us an amount equal to such underpayment as calculated by multiplying the then current monthly price for an individual User by the number of unauthorized users multiplied by the number of days of unauthorized access within [10] Business Days of the date of the relevant audit.

3.5. You shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Solution that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or

(f) causes damage or injury to any person or property;

and We reserve the right, without liability to You, to disable Your access to any material that breaches the provisions of this clause.

3.6. “Unauthorized use of Solution and Our Data” You shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
a. and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Solution and/or Documentation (as applicable) in any form or media or by any means; or
b. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Solution; or

(b) access all or any part of the Solution and Documentation in order to build a product or service which competes with the Solution; or

(c) use the Solution and/or Our Data to provide services to third parties; or

(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Solution, Our Data, and/or Documentation available to any third party except the Users, or

(e) attempt to obtain, or assist third parties in obtaining, access to the Solution, Our Data, and/or Documentation, other than as provided under this clause 3; and

3.7. Each User shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Solution and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Us.

3.8 The rights provided under this clause 2 are granted to You only, and shall not be considered granted to any subsidiary or holding company of You.

4. USE OF THE SOLUTION

4.1. Our Responsibilities. We shall: (i) provide to You Our Basic Support for the Solution at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Solution available 24 hours a day, 7 days a week except for: (a) planned downtime (of which We shall give You notice via publication on Site). We shall use commercially reasonable effort to ensure that such downtime interference to the Solution will be as minimal as possible, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet Solution provider failures or delays, and (iii) provide the Solution only in accordance with applicable laws and government regulations.

4.2. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be and remain solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Solution, and notify Us promptly of any such unauthorized access or use, (iv) be responsible for maintaining the security of the User names and passwords of Your Users using the Solution and notify Us promptly of any other breach of security known or suspected by You, (v) use the Solution only in accordance with applicable laws and government regulations, and (vi) be responsible for all activity under Your Account, including the activity of other Users who have been added to Your Account by You or by another User of the Account. You shall not (a) make the Solution available to anyone other than Users, (b) sell, resell, rent or lease the Solution, (c) use the Solution to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights (including any materials which are illegal, obscene, indecent, defamatory, incites racial or ethnic hatred, violates the rights of others, harms or threatens the safety of Users or others or may otherwise constitute a breach of any applicable law), (d) use the Solution to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Solution or third-party data contained therein, or (f) attempt to gain unauthorized access to the Solution or their related systems or networks.

4.3. Protection of Your Data. Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data unless otherwise required in order to provide the Solution, (b) disclose Your Data except as compelled by law in accordance with Section 8.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Solution or prevent or address Solution or technical problems, or at Your request in connection with customer support matters.

4.4. Deletion of Your Data.

If You become aware that any portion of Your Data or User activity violates this Agreement, You shall take all necessary action to prevent such activity and remove such Data from the Solution. To the extent We become aware that Your Data, in Our reasonable discretion, is in violation of this Agreement or any applicable law, We may immediately block access to the Solution, suspend or terminate Your use of the Solution, delete or remove such Data from the Solution, or take any other action We deem appropriate. We reserve the right to terminate or suspend Your use of the Solution if the continued provision of Solution would violate law or otherwise harm Us or our Solution. We also reserve the right to cooperate with legal authorities and third parties in the investigation of alleged wrongdoing. We will endeavor to provide notice to You prior to suspension or termination of Your use of the Solution, but may immediately suspend or terminate them in instances where Your continued use of the Solution would have a material adverse effect on Us.

4.5. Storage Limitations. Subject to your compliance with all of the terms and conditions of this Agreement, including payment, there will be no storage limitations regarding your searches or saved search results in the Solution.

4.6. Non Material Modifications. Without limiting any other terms herein contained, We reserve the right in Our sole discretion to add, change, discontinue or otherwise modify non material elements and features to the Solution at any time. We will post notifications regarding such changes on Our Site.

4.7. Customizations of the Solution. The Solution may offer interactive features that allow You to submit new specific customization and/or materials to the Solution, accessible and viewable by You including any customization to the Solution or any custom code which interacts with the Solution during the Subscription term (“New Customization”). You agree that any use by You of such New Customizations, including any materials submitted by You to the Solution, shall be Your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable, or in poor taste. You also agree that You have obtained all necessary rights and licenses. You agree to provide accurate and complete information in connection with Your submission of any New Customization or materials on the Solution. You hereby grant Us a worldwide, royalty-free, nonexclusive license to use such New Customization as part of the Solution, and in relation to the Solution, without any compensation or obligation to You. We reserve the right to not post or publish any New Customization and/or materials, and to remove or edit any New Customization and/or material, at any time in our sole discretion without any notice or liability.

We have the right, but not the obligation, to monitor any New Customization and/or materials submitted by You or otherwise available on the Solution, to investigate any reported or apparent violation of this Agreement, and to take any action that We in our sole discretion deem appropriate, including, without limitation, termination hereunder.
Your Applications and Code. If You, a third party acting on Your behalf, or a User creates applications or program code using the Solution, You authorize Us to host, copy, transmit, display and adapt such applications and program code, solely as necessary for Us to provide the Solution in accordance with this Agreement. Subject to the above, We acquire no right, title or interest from You or Your licensors under this Agreement in or to such applications or program code, including any intellectual property rights therein

4.8. Non-GA Solution. From time to time We may invite You to try, at no charge, Our products or Solution that are not generally available to Our Users (“Non-GA Solution”). You may accept or decline any such trial in Your sole discretion. Any Non-GA Solution will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Solution are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SOLUTION ARE NOT CONSIDERED “SOLUTION” HEREUNDER AND ARE PROVIDED “AS IS” WITH NO EXPRESS OR IMPLIED WARRANTY BUT REMAIN SUBJECT TO ALL OF YOUR OTHER OBLIGATIONS AS SET FORTH IN THIS AGREEMENT. We may discontinue Non-GA Solution at any time in Our sole discretion and may never make them generally available.

5. FEES AND PAYMENT FOR SOLUTION

5.1. User Fees. You shall pay all fees specified in your monthly Subscription charge and/or the amount set forth in all APOs hereunder. Except as otherwise specified herein or in a APO, (i) fees are quoted and payable in United States dollars (ii) fees are based on Solution purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of User Subscriptions purchased cannot be decreased during the relevant Subscription term stated on the APO. User Subscription fees are based on a minimum period of monthly, in advance charges for credit cards and annually, advance charges for APO’s, longer pre-paid periods are available via credit card and APO, for purposes of locking in the fee for the commitment period, (v) We may change the User Fees upon notice to You according to Section 13.2 below, and such revised fee will apply after the expiration of your then current pre-paid term.

5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information or valid APO. If You provide credit card information to Us, You authorize Us to charge such credit for the Solution listed in this Agreement or as set forth in the APO for the initial Subscription term and any renewal Subscription term(s) as set forth in Section 13.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either monthly if by credit card, or annually if by APO. If by APO, We will invoice You in advance and otherwise in accordance with the relevant APO. Unless otherwise stated in the APO, invoiced charges are due 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Solution and notifying Us of any changes to such information. The payment of the periodic fee will grant You access to the Solution for the applicable period only.

5.3. Overdue Charges. Due to the requirement of prepayment and your ability to suspend the automatic billing, the need to consider Overdue Charges will be limited, but, if for some reason any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future Subscription renewals and APOs on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment) above.

5.4. Collection Fee. In the event you fail to pay overdue charges, We may refer your account(s) to a third party for collection. You agree that if it becomes necessary for Us to refer your invoices to a third party for collection, We will charge a collection fee at the maximum percentage permitted by applicable law, but not to exceed 18% to cover the internal collection-related costs We have incurred on such invoices through and including the date on which We refer the invoices to such third party. To the extent permitted by law, you agree to pay Us any additional costs and fees We reasonably incur to collect amounts outstanding on your invoices.

You expressly authorize, and specifically consent to allowing, Us and/or our outside collection agencies, outside counsel, or other agents to contact You in connection with any and all matters relating to unpaid past due charges billed by Us to You. You agree that, for attempts to collect unpaid past due charges, such contact may be made to any mailing address, telephone number, cellular phone number, e-mail address, or any other electronic address that You have provided, or may in the future provide Us. You agree and acknowledge that any e-mail address or any other electronic address that You provide Us is your private address and is not accessible to unauthorized third parties. For attempts to collect unpaid charges, You agree that in addition to individual persons attempting to communicate directly with You, any type of contact described above may be made using, among other methods, pre-recorded or artificial voice messages delivered by an automatic telephone dialing system, pre-set e-mail messages delivered by an automatic e-mailing system, or any other pre-set electronic messages delivered by any other automatic electronic messaging system.

5.5. Suspension of Solution and Acceleration. If any amount owed by You under this or any other Agreement for Our Solution is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such Agreements so that all such obligations become immediately due and payable, and suspend your access to the Solution until such amounts are paid in full. We will give you at least 7 days’ prior notice that Your account is overdue, in accordance with Section 14.1 (Manner of Giving Notice), before suspending your access to the Solution.

5.6. Payment Disputes. We shall not exercise Our rights under Section 5.3 (Overdue Charges) or 5.5 (Suspension of Solution and Acceleration) with respect to those charges that are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.

5.7. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against it based on Our income, property and employees.

5.8 Referral Program. Users are automatically enrolled in Vertolo’s Referrral Program. Each Referrer will receive a Referral Reward equal to a base percentage amount (hereinafter “the Multiplier”) multiplied by the monthly Subscription fee paid by a Referred Subscription User that joined via the Referral Link sent by the Referrer for so long as the Referred and the Referrer remain Subscription Users. There is no limit on the number of Referral Links that a User can send to potential users and no cap on the Referral Reward that can be earned by a Referrer. Vertolo reserves the right to modify the Multiplier at any time but said modified Multiplier will only apply to Referral Rewards generated by Referred Users that subscribe after the posting date of the new Multiplier.

6. THIRD-PARTY PROVIDERS

6.1. Acquisition of Third-Party Products and Solution. We may offer Third-Party Applications for an additional fee. You may modify your APO to add such Third-Party Product or pay for it separately via credit card. Any other acquisition by You of third-party products or applications, including but not limited to Third-Party Applications and implementation, customization and other consulting, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or applications, whether or not they are designated by Us as “certified” or otherwise, except as specified in the APO. Subject to Section 6.3 below (Integration with Third Party Solution), no purchase of third-party products or applications is required to use the Solution except a supported computing device, operating system, web browser and Internet connection.

6.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Solution, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Solution. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Solution shall allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Solution.

6.3. Integration with Third-Party Applications. The Solution may contain features designed to interoperate with Third-Party Applications (e.g., Google, Linkedin, Facebook or Twitter applications). To use such features, You may be required to obtain access to such Third-Party Applications from such third parties. If such third party ceases to make the Third-Party Application available for interoperation with the corresponding Solution features we may replace said Third-Party Application provider(s) as necessary, or on reasonable notice, We may cease providing such Solution features without entitling You to any refund, credit, or other compensation.

You hereby acknowledge and confirm that We may work with a third-party application provider to enable You to view certain electronic files in their native format while using the Solution. You further acknowledge that any such third party provider that provides such third-party application may have access to files You choose to upload and view while using the Solution and that such files will be stored on a “public” storage Solution maintained by Us and such third party vendor. We do not warrant or support this third party application Solution and reserve the right to remove this functionality from the Solution at any time. You further acknowledge that we may replace features and functionality provided through Third Party Applications in Our sole discretion.

7. PROPRIETARY RIGHTS

7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Solution and the Site and all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

7.2. Restrictions. You shall not (i) permit any third party to access the Solution except as permitted herein, (ii) create derivate works based on the Solution, (iii) copy, frame or mirror any part or content of the Solution, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes during the Subscription term and for the exclusive use of Your Users, (iv) reverse engineer the Solution, or (v) access the Solution in order to (a) build a competitive product or Solution, or (b) copy any features, functions or graphics of the Solution.;’

7.3. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. You grant Us a non-exclusive right to use your Data for purposes of generating searches, refining search results, and saving Your Data and search results in our Solution.

7.4. Third Party Data. All title and intellectual property rights in and to any data of any third party which may be linked to or viewed in connection with the Solution is the property of the respective data owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement does not grant You any right to use such data except as allowed by such third party.

7.5. Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Solution any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Solution.

8. CONFIDENTIALITY AND PRIVACY POLICY

8.1. This Agreement is subject to Our Privacy Policy, which can be found at https://vertolo.com/privacy-policy/, and constitutes an integral part of this Agreement.

8.2. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or written, 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. Your Confidential Information shall include Your Data; Our Confidential Information shall include the Solution; and Confidential Information of each party shall include the terms and conditions of this Agreement and all APOs, Your customer names and customer lists, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any 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.

8.3. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall protect the Disclosing Party’s Confidential Information by using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care), and shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

8.5. No Implied Rights. Except as expressly set forth herein, no license or other rights to Confidential Information are granted or implied hereby by either party.

9. MARKETING; PUBLICATION

You are willing to assist Us to publish certain press releases or other communications. Joint press releases or other communications shall be mutually approved in advance by You and Us. Unilateral references or other non-press related communications by one party such as social media, newsletters, websites, presentations, blogs and other methods that may be relevant from time to time, in which the name and/or logo of the other party appears, shall not require the prior written consent of such other party.

10. WARRANTIES AND DISCLAIMERS

10.1. Our Warranties. We warrant that (i) to the best of Our knowledge, the Solution and the Site do not, and during the term of any APO, will not, infringe, violate or misappropriate any third party’s intellectual property (including copyrights, patents, trademarks, and trade secrets), privacy, moral, or other personal or proprietary rights and (ii) the Solution shall perform materially in accordance with the features and functionalities, as set forth in the Site, (iii) Subject to Section 6.3 (Integration with Third Party Solution), the functionality of the Solution will not be materially decreased during a Subscription term, and (iv) We will not transmit Malicious Code. For any breach of said warranty, Your exclusive remedy shall be as provided in Section 11.1 (Indemnification by Us), Section 13.3 (Termination for Cause) and Section 13.4 (Refund or Payment upon Termination) below.

10.2. Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement.

10.3. Disclaimer. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE SOLUTION ARE PROVIDED ON AN “AS IS” BASIS.

WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
EXCEPT AS OTHERWISE PROVIDED HEREIN, WE MAKE NO WARRANTY THAT THE SOLUTION WILL MEET YOUR REQUIREMENTS OR NEEDS OR THAT THE SOLUTION WILL BE UNINTERRUPTED, TIMELY OR BE FREE FROM SOFTWARE ERRORS, NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOLUTION OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SOLUTION OR THAT DEFECTS IN THE SOLUTION WILL BE CORRECTED.

11. MUTUAL INDEMNIFICATION

11.1. Indemnification by Us. We shall defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Solution as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Us written notice of the Claim; (b) give Us sole control of the defense and settlement of the Claim (provided that We may not settle any Claim unless the settlement unconditionally releases You of all liability and You may not make any admissions or settlements without Our prior written consent); (c) provide to Us all reasonable assistance, at Our expense; and (d) provided that such infringement or misappropriation of any third party’s intellectual property rights is not resulting from: (i) You or Your Users misuse of the Solution or the Site; (ii) Your use of the Solution together with a Third Party Application or integration; or (iii) from non-compliance by You or Your Users of the terms and conditions contained herein. In the event of a Claim against You, or if We reasonably believe the Solution may infringe or misappropriate, We may in Our discretion and at no cost to You (i) modify the Solution so that they no longer infringe or misappropriate, without breaching Our warranties under Section 10.1 (Our Warranties) above, (ii) obtain a license for Your continued use of the Solution in accordance with this Agreement, or (iii) terminate Your User Subscriptions for such Solution upon 30 days’ written notice and refund to You any prepaid fees covering the remainder of the term of such User Subscriptions after the effective date of termination.

11.2. Indemnification by You. You shall defend Us against any Claim made or brought against Us by a third party alleging that: (i) Your Data; or (ii) Your use of the Solution is in violation of this Agreement; or (iii) or the use by You of any third party’s integration, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by Us in connection with any such Claim as a result of, or for any amounts paid by Us under a court-approved settlement of a Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally releases Us of all liability and We may not make any admissions or settlements without Your prior written consent); and (c) provide to You all reasonable assistance, at Your expense.

11.3. Exclusive Remedy. This Section 11 (Mutual Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.

12. LIMITATION OF LIABILITY

12.1. Limitation of Liability. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL FEES PAID TO US BY YOU FOR USE OF THE SOLUTION DURING THE PRECEDING TWELVE MONTH PERIOD. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR SOLUTION).

12.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

13. TERM AND TERMINATION

13.1. Term of Agreement. This Agreement commences on the day you register for the Solution and continues until all of Your User Subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Solution for a Free Trial period and do not purchase a Subscription before the end of that period, the Agreement will terminate at the end of the Free Trial period.

13.2. Term of Purchased User Subscriptions. User Subscriptions purchased by You commence on the start date of payment, if by credit card, or on the date payment is received from an applicable APO and continues for the Subscription term specified therein. Except as otherwise specified in the applicable APO, all User Subscriptions shall automatically renew for additional periods equal to the expiring Subscription term unless either party gives the other notice of non-renewal (Deactivating Your account) at least 30 days before the end of the relevant APO Subscription term or 10 days prior to the applicable monthly credit card term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given You Notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 7% of the pricing for the relevant Solution in the immediately prior Subscription term, unless the pricing in such prior term was designated as promotional or one-time.

Deactivating or allowing Your Account to lapse (Termination for Convenience) will cause your access to the Solution and all saved to data to be suspended.  All saved data will be retained for a period of thirty (30) days and then permanently deleted.  You may regain access to your suspended account and saved data during the thirty (30) day period by reactivating your monthly billing option and making the required payment for a new thirty (30) day period.  There is no late or overdue fee when you reactivate your suspended account.

13.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 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.

13.4. Refund or Payment upon Termination. Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all Subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all APOs after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination. Upon Termination for Convenience, you will not receive a refund but you will continue to have access to your account and all features of the Solution until the end of the current term, either monthly or per the term of your APO. Upon Termination for Convenience, you will not receive a refund but you will continue to have access to your account and all features of the Solution until the end of the current term, either monthly or per the term of your APO.

13.5. Effect of Termination. If we terminate this Agreement for Cause it will result in the immediate deactivation or deletion of Your Account or Your and Your Users access to the Account. Upon termination, all of Your access to the Solution will be disabled and all of Your Data will be stored in the Site’s database for a period of 30 days following the termination of Your Account (the “Storage Period”).  Upon the end of the Storage Period all Your Data will be permanently deleted from the Site’s servers. Once deleted, this information cannot be recovered. After such 30-day period, We shall have no obligation to maintain or provide any of Your Data and may thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

13.6. Surviving Provisions. Section 3 (The Solution), 4 (Use of the Solution), 5 (Fees and Payment for Solution), 7 (Proprietary Rights), 8 (Confidentiality), 10.3 (Disclaimer), 11 (Mutual Indemnification), 12 (Limitation of Liability), 13.5 (Effect of Termination), and 14 (General Provisions) shall survive any termination or expiration of this Agreement.

14. GENERAL PROVISIONS

14.1. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim unless the fax and/or mailing address provided by You are no longer valid). Notices to You shall be addressed to the system administrator designated by You for Your relevant Solution account, and in the case of billing-related notices, to the relevant billing contact designated by You. Notices to us shall be to one of the addresses detailed in the “contact us” section on our web site.

14.2. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

14.3. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Solution. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Solution in violation of any U.S. export embargo, prohibition or restriction countries.

14.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

14.5. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

14.6. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

14.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

14.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all APOs), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

14.10. Governing Law & Venue – This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding that body of California law concerning conflicts of law. The parties further submit to the exclusive jurisdiction of the Courts of the State of California, for any litigation arising out of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this agreement.

14.11. Compliance with Treasury Department Office of Foreign Assets Control Regulations. Both Parties are currently in compliance with and will at all times during the Term remain in compliance with the regulations of the Office of Foreign Asset Control of the Department of the Treasury regarding the Iran Sanctions and the Counter Terrorism Sanctions, as provided in its office website: http://www.treasury.gov/resource-center/sanctions/Programs/pages/iran.aspx, and http://www.treasury.gov/resource-center/sanctions/Programs/pages/terror.aspx, or at any replacement website or other replacement official publication, and with any statute, executive order or other governmental action relating thereto.

14.12. Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. The Referral Program and reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our team at admin@vertolo.com.

This Agreement, including all exhibits and addendum hereto and all APOs, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any APO, the terms of such exhibit, addendum or APO shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your APO or other order documentation (excluding APOs) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

QUESTIONS ABOUT THIS AGREEMENT SHOULD BE SENT TO: admin@vertolo.com