Last Updated: December 1, 2021 (v1)
These Terms of Service (“TOS”) set forth the terms and conditions on which Venmark Capital Solutions, Inc. (“Venmark”), a Delaware corporation, makes available the offerings described herein. Please read these TOS carefully as they contain important information about the offerings and limitations on Venmark’s and its suppliers’ liability.
BY PLACING AN ORDER FOR, ACCESSING, OR USING THE OFFERINGS DESCRIBED HEREIN, YOU CONFIRM THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND BY THESE TOS. YOU FURTHER REPRESENT AND WARRANT THAT YOU HAVE ALL NECESSARY RIGHT, POWER, AND AUTHORITY TO ACCEPT THESE TOS ON BEHALF OF YOUR COMPANY OR ORGANIZATION.
Pursuant to one or more orders placed using Venmark’s standard order form, online ordering functionality, or other mutually acceptable process (each an “Order”), the person or entity identified as the customer, client, or subscriber in the Order (“Subscriber”) may purchase, and Venmark agrees to provide, one or more term-based subscriptions (each a “Subscription”) to remotely access and use one or more of the subscription-based service offerings that are made available by Venmark (the “Subscription Services”). All Orders are subject to and governed by these TOS, as supplemented by the specific pricing, payment, and other commercial terms of the corresponding Order.
During the Subscription term under a corresponding Order, subject to Subscriber’s compliance with these TOS and the Order, Venmark grants Subscriber a non-exclusive, non-transferable, non-sublicensable license to remotely access and use the Subscription Services identified in and made available to Subscriber under the Order for the lawful, internal business purposes of Subscriber and, only if identified and authorized in the Order, Subscriber’s designated, authorized users (“Users”), in order to: (a) input financial, business, and/or other information, materials, or data (“Subscriber Data”); (b) produce dashboards, analysis, reports, content and/or other output (“Subscription Output”), which may incorporate or be derived from Subscriber Data and/or the proprietary data of Venmark and Venmark’s third-party data suppliers; and (c) download and print copies of the Subscription Output for Subscriber’s and its Users’ internal records in the format and manner made available through the Subscription Services. The foregoing license is limited solely to the Subscription Services modules, features, and functionality, type(s) and quantity of Subscription Output, and type(s) and number of Users for which Subscriber has purchased a Subscription under the Order.
Venmark is responsible for: (a) making available the Subscription Services identified in and purchased by Subscriber under the Order; (b) using commercially reasonable efforts to maintain availability of the Subscription Services in accordance with Venmark’s published Service Level Agreement, if and as identified in the Order; (c) making available technical support for the Subscription Services in accordance with Venmark’s published Support Policy, if and as identified in and purchased by Subscriber under the Order; (d) making available any training, consulting, or other professional services offered by Venmark for the Subscription Services, if and as identified in and purchased by Subscriber under the Order; and (e) performing any other Venmark obligations or responsibilities identified in these TOS or the Order (with the Subscription Services and Subscription Output, collectively, the “Services”).
Subscriber is responsible for: (a) inputting Subscriber Data in the format(s) and using the data entry method(s) or interface(s) designated, supplied or approved by Venmark for use with the Subscription Services; (b) at Subscriber’s option, redacting, omitting, or obfuscating any Subscriber Data elements that Subscriber desires to anonymize prior to inputting such data in the Subscription Services; (c) maintaining up-to-date client-side equipment, third-party software, and connectivity to access and use the Subscription Services; (d) obtaining and maintaining, at Subscriber’s expense, any necessary third-party rights, licenses, permissions, consents, and approvals for the Subscriber Data; (e)
confirming the accuracy, completeness, and suitability of the Subscriber Data; (f) retaining copies of Subscriber Data and Subscription Output, it being understood that the Subscription Services are not a record keeping system and that Venmark shall not be deemed the original record keeper or primary custodian of any of Subscriber’s records, files, or data; and (g) performing any other Subscriber obligations or responsibilities identified in these TOS or the Order.
If and as mutually agreed to and identified in the corresponding Order, Subscriber may designate one or more of its affiliated entities, customers, clients, and/or other third parties as Users of the Subscription Services. Subscriber is responsible for ensuring that its Users understand and comply with Subscriber’s obligations under these TOS and shall be liable for any non-compliance. Only Subscriber may enforce these TOS on its Users’ behalf, it being understood and agreed that Venmark assumes no direct obligations or liability of any kind to Subscriber’s Users.
Subscriber shall not, nor shall it authorize or permit any other person or entity to: (a) access or use the Services in a manner or for a purpose not authorized by these TOS; (b) make the Subscription Services available to anyone other than its Users, or in excess of the type(s) or number of Users for whom Subscriber has purchased a Subscription; (c) access or use the Subscription Services through connections, interfaces, or other means not supplied or expressly approved in writing by Venmark; (d) modify, adapt, alter, translate, create compilations, collections, or derivative works based upon, distribute, publish, or otherwise make available copies or extracts of any component of the Services, except that Subscriber may download, print, and retain copies of Subscription Output if and as authorized by these TOS; (e) sell, resell, license, sublicense, rent, lease, or otherwise use or permit use of the Services by or for the benefit of anyone other than Subscriber, including as part of any consulting, outsourcing, or service bureau arrangement; (f) remove or obscure any notices, warnings, or disclaimers for the Services, including any copyright, trademark, or other proprietary rights attributions or designations, all of which are incorporated into these TOS by this reference; (g) deactivate, bypass, or otherwise attempt to circumvent any license keys, access controls, or other security measures for the Services; (h) use the Subscription Services in violation of telecommunications or Internet service provider rules, applicable laws or regulations, or the intellectual property or other rights of any third party; (i) knowingly engage in any activity that disrupts, diminishes the quality of, or interferes with the performance of the Subscription Services; (j) attempt to gain unauthorized access through the Subscription Services to any network, systems, software, accounts, databases, or data; (k) use the Services or any component thereof for benchmarking, product development, or any other competitive purpose; or (l) except to the limited extent permitted by law (but only to the extent such rights cannot be waived contractually), reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code or underlying programming, data, or database structures for any component of the Services.
Subscriber agrees to pay Venmark for the Services at the pricing and in accordance with the payment schedule set forth in the Order. All amounts not collected at the time of Order placement are due and payable by Subscriber no later than 30 days after the invoice date by company check to Venmark’s designated payment address, ACH to Venmark’s designated bank account, or such other payment method as may be offered by Venmark or specified in the Order. All amounts are stated and payable in U.S. Dollars and, except as otherwise expressly stated in these TOS, are non-refundable.
Subscriber shall notify Venmark no later than 15 days after the date of the corresponding invoice if Subscriber disputes any invoiced amount. Venmark shall not charge interest or exercise its other rights for delinquent payment under these TOS where Subscriber provides such timely notice, is disputing the invoiced amount reasonably and in good faith, timely pays any portion of the invoice that is not subject to the good faith dispute, and cooperates to diligently resolve the dispute within 30 days.
Except as provided in the preceding paragraph, Venmark reserves the right to suspend provision of the Services for delinquent payment, and to charge interest on overdue amounts at the rate of 1.5% per month (18% per annum) or the maximum rate permitted by applicable law, whichever is less, accruing from the due date until the date paid. In the event that any overdue amount requires collection efforts, Subscriber agrees to reimburse Venmark for its reasonable costs of collection (including reasonable attorneys’ fees).
All pricing is exclusive of any sales, use, or other taxes, however designated or levied in any jurisdiction by any taxing authority, associated with Subscriber’s purchase, receipt, or use of the Services. Subscriber is responsible for, and shall promptly pay (where invoiced by Venmark) or remit to the taxing authority (where applicable), any such taxes, excluding taxes on Venmark’s net income. If applicable, Subscriber shall provide evidence of tax-exempt status prior to the first payment becoming due.
The initial term of the Subscription and any related Services is as stated in the Order. Following the initial term, the Subscription and Services are subject to renewal on the basis set forth in the Order, or if not stated in the Order, on terms and pricing that are mutually agreed to by the parties and set forth in a corresponding Order for the renewal term. Notwithstanding the foregoing, the term for Subscription Services purchased on a one-time or similar transactional basis (e.g., a fixed fee for a single report) shall automatically expire upon Venmark’s fulfillment of such one-time or similar purchase.
Either party may terminate an Order, in whole or in part: (a) if the other party breaches any material provision of these TOS or the Order and fails to cure the breach within thirty (30) days after receiving written notice thereof; (b) if the other party becomes or is declared insolvent, makes a general assignment for the benefit of creditors, suffers a receiver to be appointed for it, files a voluntary petition in bankruptcy, or has an involuntary petition in bankruptcy filed against it, which petition is not dismissed with prejudice within sixty (60) days after the filing thereof; or (c) in accordance with any other termination right expressly stated in these TOS or the Order.
Upon the expiration or termination of an Order or any Subscription: (i) Subscriber shall immediately discontinue using the Subscription Services and remove any remnants (such as cached computer code) from its equipment, systems, and devices; (ii) provided that Subscriber is and remains in compliance with these TOS, Subscriber may retain copies of Subscription Output that it downloaded or printed during the Subscription term, solely for use under and in accordance with these TOS; (iii) Subscriber shall pay Venmark all outstanding amounts owed for the Services, which, in the event of improper termination by Subscriber or termination by Venmark for cause, includes any amounts that would have been due for the remainder of the Subscription term and any committed renewal term; and (iv) each party shall comply with its other post-termination obligations under these TOS.
Sections 5, 6, 7, 8, and 10 through 19 of these TOS, and any other provisions of these TOS or any Order which, by their terms or nature, are intended to survive, shall survive the expiration or termination of these TOS or any Order for any reason, and shall be binding on and inure to the benefit of the parties and their respective permitted successors and assigns.
From time to time in connection with these TOS or an Order, either party may disclose to or receive from the other party information that is designated as confidential at the time of disclosure or that a reasonable person would consider confidential, proprietary, or non-public in nature, including information related to the disclosing party’s business, operations, finances, products, services, pricing, customers, employees, suppliers, technology, software, systems, trade secrets, know-how, and other intellectual property, whether orally, electronically, or in writing (“Confidential Information”).
Notwithstanding the foregoing, Confidential Information does not include information that: (a) was rightfully in the receiving party’s possession prior to receiving such information from the disclosing party; (b) is acquired by the receiving party, free from any confidentiality obligation, from a third party that is entitled to share the information on that basis; (c) is independently developed by or for the receiving party, without breaching its confidentiality obligations; or (d) is or becomes generally known or available to the public through no fault of the receiving party. Furthermore, and for the avoidance of doubt, a party’s confidentiality obligations under these TOS are not intended and shall not be construed to limit either party’s exercise of its rights and licenses or adherence to the restrictions with respect to Subscriber Data or Subscription Output as provided herein.
Each party agrees to safeguard the other party’s Confidential Information in its possession, custody, or control using at least the same care used to protect its own Confidential Information of a similar nature, but no less than reasonable
care. The receiving party shall use the disclosing party’s Confidential Information only for the limited purpose of exercising its rights and performing its obligations under these TOS, or as otherwise expressly authorized in writing by the disclosing party. The receiving party shall limit its voluntary disclosure of the disclosing party’s Confidential Information to its principals, directors, officers, employees, agents, subcontractors, service providers, sub-processors, and legal and financial advisors who have a need to know the information for a permitted purpose and are subject to confidentiality obligations in substance not less than those imposed by these TOS, and/or any other third parties that are expressly authorized by the disclosing party to receive such information.
Either party may disclose the other party’s Confidential Information if and as required by applicable law or regulation or to comply with judicial process, regulatory requests, or orders of governmental entities that have jurisdiction over it, including, in the case of Subscriber, the disclosure of Subscription Output to its primary regulators with supervisory authority if and as necessary to respond to a regulatory investigation, audit, or examination, provided that, except as otherwise required to comply with applicable law or regulation, the receiving party: (i) notifies the disclosing party in advance; (ii) affords the disclosing party a reasonable opportunity to object or seek a protective order or other appropriate remedy, at its own expense; and (iii) in any event, limits its disclosure to that which is required under applicable law or regulation.
Upon the expiration or termination of all Orders entered into under these TOS, or the disclosing party’s earlier written demand, the receiving party shall promptly return or destroy all of the disclosing party’s Confidential Information in its possession, custody, or control and, upon the disclosing party’s written request, shall certify in writing that it has complied with the foregoing requirement. Notwithstanding the foregoing, the receiving party is not obligated to return or destroy copies of Confidential Information created pursuant to electronic back-up or archiving procedures in the ordinary course or retained in accordance with its record retention policy for archival, legal or regulatory compliance purposes, provided that any such retained Confidential Information shall remain subject to the receiving party’s confidentiality obligations under these TOS.
Each party shall comply with those privacy and data protection laws and regulations that apply directly to it in connection with its performance under these TOS or any Order. Subscriber acknowledges that the Subscription Services are intended to process information pertaining to businesses, organizations, or other legal entities. The Subscription Services are not intended to process, and Subscriber and its Users shall not input, protected health information, nonpublic personal information, consumer information, or other information that is subject to protection under applicable privacy, consumer protection, or data protection laws.
Venmark shall maintain an information security program with physical, administrative, and technical security controls designed to protect against unauthorized access to or use of the Subscription Services. Upon Subscriber’s written request during the Subscription term, no more than once annually, Venmark agrees to make details of its information security program available to Subscriber, for confidential, internal review only, in the summary or other format that Venmark makes such information available to its customer base generally.
Subscriber is responsible for (a) designating its Users and overseeing their Subscription Services access levels and privileges; (b) maintaining the confidentiality of Subscriber’s and its Users’ access credentials, including login IDs and passwords; (c) not allowing User credentials to be shared or used by more than one individual; and (d) maintaining appropriate security measures for any client-side equipment, systems, and devices used by Subscriber and its Users to access the Subscription Services.
Each party agrees to notify the other party promptly, and no later than 72 hours after discovery (unless delayed at the request of law enforcement), of any unauthorized access to or use of the Subscription Services affecting Subscriber or its Users, or occurring under Subscriber’s or its Users’ accounts. Each party agrees to provide reasonable information and assistance to the other party in investigating and responding to any such security incident.
Venmark reserves the right to monitor use of the Subscription Services, to suspend provision of the Subscription Services in order to protect the security or curb the misuse thereof, and to report to appropriate law enforcement, governmental authorities and third parties any activities that Venmark, in good faith, believes to be harmful or unlawful. Venmark will use commercially reasonable efforts to promptly inform Subscriber of any such suspension,
and to cooperate with Subscriber to resolve the matter giving rise to the suspension so that the Subscription Services may be restored as soon as possible under the circumstances.
As between the parties, Venmark has and shall retain exclusive ownership of the Subscription Services, including all associated websites, programming, interfaces, databases, content, executable code, source code, and documentation, all domains and sub-domains, the program architecture, database structure, coding methodology, design, layout, and “look and feel,” all Subscription Output (excluding Subscriber Data incorporated therein), all technical, usage, and service-related data and metadata related to the operation or use of the Subscription Services, all Services artifacts and deliverables, all updates, new releases, modifications, enhancements, and improvements, all associated goodwill, and all copyrights, patent rights, trademarks, and other intellectual property and proprietary rights of any nature throughout the world embodied therein and appurtenant thereto. All rights and licenses not expressly granted to Subscriber under these TOS are reserved by Venmark and its third-party suppliers. From time to time, Subscriber or its Users may voluntarily provide Venmark with suggestions, enhancement requests, or other feedback for the Services. Subscriber hereby grants Venmark a non-exclusive, perpetual and irrevocable, transferable, sublicensable, worldwide, royalty free license to use, act on (or choose not to act on), and otherwise commercialize such feedback, without proprietary, confidentiality, or other restrictions.
As between the parties, Subscriber has and shall retain exclusive ownership of the Subscriber Data. Subscriber hereby grants Venmark a non-exclusive, perpetual, irrevocable, transferable, sublicensable (including to its service providers, subcontractors, and sub-processors), worldwide, royalty-free license to reproduce, perform, display, transmit, distribute, process, store, create compilations, collections, and derivative works based upon, and otherwise access, use, and disclose the Subscriber Data: (a) as necessary for or incidental to operating, maintain, and providing the Services; and (b) for research, development, benchmarking, and modeling purposes, including the development and commercialization of product, service, and database improvements, without proprietary, confidentiality, or other restrictions, provided that the Subscriber Data is aggregated with similar data collected from others and that Subscriber is not publicly identified as the source of the Subscriber Data.
Venmark warrants that it shall provide the Services in a professional manner, consistent with generally accepted industry standards and practices, and in compliance with all laws that apply directly to Venmark in its provision of the Services. The foregoing warranty is subject to Subscriber notifying Venmark of a breach of the foregoing warranty promptly, and no later than thirty (30) days after the date of performance of the nonconforming Services, and providing all information that may be reasonably requested by Venmark in connection therewith. Upon receiving such timely notice and confirming that a valid warranty claim exists, Venmark shall use commercially reasonable efforts to re
perform or otherwise remedy the nonconforming Services at no additional charge.
THE EXPRESS SERVICES WARRANTY SET FORTH ABOVE IS THE SOLE WARRANTY MADE BY VENMARK FOR THE SERVICES. VENMARK DOES NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, VENMARK DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE AND HEREBY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
THE SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY, SHOULD NOT BE CONSTRUED, AND MAY NOT BE RELIED UPON AS LEGAL, ACCOUNTING, TAX, INVESTMENT, LENDING, OR FINANCIAL PLANNING ADVICE, OR AS AN OFFER, SOLICITATION OR RECOMMENDATION TO MAKE ANY LOAN, EXTEND ANY OFFER OF CREDIT, PURCHASE, SELL OR HOLD ANY SECURITY, CLASS OF SECURITIES, OR OTHER FINANCIAL PRODUCT, OR PARTICIPATE IN ANY PARTICULAR LENDING, INVESTMENT, OR OTHER STRATEGY.
SUBSCRIBER ACKNOWLEDGES THAT ITS PAYMENT AND OTHER OBLIGATIONS UNDER THESE TOS ARE NOT CONTINGENT UPON THE DELIVERY OF ANY FUTURE FEATURES OR FUNCTIONALITY FOR THE SERVICES, NOR MADE IN RELIANCE ON ANY ORAL OR WRITTEN REPRESENTATIONS MADE BY VENMARK REGARDING FEATURES OR FUNCTIONALITY THAT IT MAY ADD IN THE FUTURE.
NO EMPLOYEE OR AGENT HAS AUTHORITY TO BIND VENMARK TO ANY REPRESENTATIONS OR WARRANTIES NOT EXPRESSLY SET FORTH IN THESE TOS.
If Subscriber is placing an order for the Subscription Services through one of Venmark’s authorized channel partners, then the terms and conditions in this paragraph apply: Orders may be placed with one of Venmark’s authorized channel partners only if and as authorized by Venmark. As between Venmark and Subscriber, these TOS apply to and govern Subscriber’s purchase and use of the Services, even if not expressly referenced in the order with the authorized channel partner; provided, however, the pricing and payment terms are as agreed to between Subscriber and the authorized channel partner. Venmark’s authorized channel partners are independent contractors, not subcontractors, service providers, or sub-processors of Venmark, and have no authority or ability to modify these TOS or otherwise assume any obligations or liabilities on Venmark’s behalf. Venmark has no obligation or liability for any other products or services that may be offered by or through an authorized channel partner, including any consulting or other value added services, even if included by the authorized channel partner under the same order for Services.
The Subscription Services may include features designed to support Subscriber’s transmission of data to, receipt of data from, or other communication between the Subscription Services and products, services, or other offerings of third parties (“Third Party Services”). Although Venmark uses commercially reasonable efforts to maintain such Subscription Services features, Venmark cannot and does not guarantee the availability of such features in connection with any particular Third Party Services. Third Party Services purchased, licensed, or used by Subscriber are subject to the license, data processing, and other terms of their respective, third-party suppliers, and are warranted (if at all) only as expressly provided by such third-party suppliers. Venmark does not make any representations or warranties nor assume any obligations or liability in connection with the Third Party Services, even if Venmark refers or resells the Third Party Services or provides any recommendations or assistance in connection therewith.
In certain cases, Venmark may permit use of the Subscription Services on a trial, evaluation, or similar basis. In such cases, and notwithstanding anything to the contrary herein, the Services are made available solely for internal evaluation on a limited, revocable, trial basis, and are provided by Venmark “AS IS” without representations, warranties, support, or other obligation, subject to and without limiting Subscriber’s obligation to comply with these TOS. At the conclusion of the trial, Subscriber must either place an Order for the Subscription Services under evaluation or cease all use of the Services, including Subscription Output produced during the trial.
Venmark agrees to defend any claim brought by a third party against Subscriber (or its directors, officers, employees, principals, agents, or affiliated entities) in a court or other body of competent jurisdiction, and to indemnify and hold Subscriber and its indemnified parties harmless from and against those damages, losses, liabilities, fines, costs, and expenses (including reasonable attorneys’ fees, disbursements, and court costs) that are awarded to the third party, or agreed to pursuant to a legally binding settlement, to the extent based upon such third party’s allegation that the Subscription Services or Subscription Output, in the form provided by Venmark to Subscriber under these TOS and the corresponding Order, infringe the third party’s copyright, United States patent, or registered trademark rights or misappropriate the third party’s trade secrets.
Notwithstanding anything to the contrary, Venmark shall have no indemnification, defense, or other obligation or liability in connection with any claim to the extent arising out of or based upon: (a) Subscriber’s or any User’s non compliance with these TOS; (b) modifications to the Subscription Services or Subscription Output not made by or at
the express direction of Venmark; (c) Venmark’s adherence to, reliance on, or inclusion of specifications, designs, information, materials, or instructions furnished by Subscriber or its Users; (d) use of the Subscription Services or Subscription Output in combination with any Subscriber, User, or third-party products, services, systems, equipment, software, methods, steps, or materials; (e) the specific Subscriber Data or type(s) of Subscriber Data input, processed, or stored using the Subscription Services or included in the Subscription Output; or (f) Subscriber’s or a User’s continued use of other than the most current version of the Subscription Services or Subscription Output after such most current version has been made available to Subscriber (the “Infringement Indemnity Exclusions”).
In the event of a bona fide third-party infringement claim directed to the Subscription Services or Subscription Output, in addition to and without limiting its obligations above, Venmark shall have the right, at its sole option and expense, to: (x) modify or replace the item so that it becomes non-infringing; (y) secure the right for Subscriber to continue using the item; or (z) if the foregoing options are not commercially practicable, (i) terminate the Subscription Services, in whole or in part, in exchange for a prorated portion of any fees prepaid by Subscriber to Venmark for the terminated Subscription Services in respect of the period after the date of termination and/or (ii) require Subscriber’s return of Subscription Output in exchange for a refund of a prorated, depreciated portion of the fees paid by Subscriber to Venmark for such Subscription Output, determined by Venmark in its reasonable discretion based on the nature and quantity of the Subscription Output and the length of time that Subscriber has had beneficial use of the Subscription Output prior to return.
As between the parties, Subscriber is solely responsible for the manner in which Subscriber and its Users use or rely upon the Services. Subscriber agrees to defend any claim brought by a third party against Venmark (or its directors, officers, employees, principals, agents, or affiliated entities) in a court or other body of competent jurisdiction, and to indemnify and hold Venmark and its indemnified parties harmless from and against those damages, losses, liabilities, fines, costs, and expenses (including reasonable attorneys’ fees, disbursements, and court costs) that are awarded to the third party, or agreed to pursuant to a legally binding settlement, to the extent arising out of or based upon: (a) Subscriber’s or any User’s non-compliance with or failure to perform their responsibilities or obligations under these TOS; (b) Subscriber’s or any User’s decisions made, actions taken, advice provided, or outcomes achieved (or not achieved) based in whole or in part on their use of or reliance upon any component of the Services; or (c) any one or more of the Infringement Indemnity Exclusions set forth above.
The indemnified party shall notify the indemnifying party promptly of any third-party claim for which it is entitled to indemnification under this Section 16. Delay in providing such notice shall relieve the indemnifying party of its indemnification obligation only to the extent that defense of the claim is materially prejudiced by such delay. The indemnifying party shall control the defense and settlement of the claim, at its own expense, with counsel of its choice. The indemnified party shall have the right to participate in (but not control) the defense and settlement of the claim, at its own expense, with counsel of its choice. Regardless of whether the indemnified party elects to participate, the indemnifying party shall keep the indemnified party reasonably apprised of the status of the claim. The indemnified party shall provide all reasonable information and assistance that is requested by the indemnifying party, at the indemnifying party’s reasonable expense. Neither party is authorized to, nor shall it, make any admission of fault or wrongdoing, or purport to settle or dispose of all or any part of the claim, without the other party’s prior review and written consent, not to be unreasonably withheld, conditioned, or delayed.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, PUNITIVE, INDIRECT, OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE SERVICES, THESE TOS, OR ANY ORDER, INCLUDING LOSS OF BUSINESS, PROFITS, OR REVENUE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF AND RELATED TO THE SERVICES, THESE TOS, AND ALL ORDERS SHALL NOT, REGARDLESS OF THE NUMBER OF INCIDENTS OR CAUSES OF ACTION GIVING RISE TO ANY SUCH LIABILITY, EXCEED THE FEES PAID BY SUBSCRIBER TO VENMARK UNDER THE ORDER(S) GIVING RISE TO THE CLAIM(S) IN THE TWELVE (12) MONTHS PRIOR TO THE ACCRUAL OF THE FIRST SUCH CLAIM OR ONE THOUSAND U.S. DOLLARS ($1,000), WHICHEVER IS GREATER.
THE LIMITATIONS ON LIABILITY IN THIS SECTION 17 ARE AN ESSENTIAL PART OF THESE TOS, SHALL APPLY TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, REGARDLESS OF THE CAUSE OF ACTION OR BASIS OF LIABILITY (WHETHER IN CONTRACT, TORT, OR OTHERWISE), AND SHALL BE VALID AND BINDING EVEN IF ANY REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS ON LIABILITY IN THIS SECTION 17 SHALL NOT APPLY TO OR LIMIT: (A) EITHER PARTY’S OBLIGATIONS OR LIABILITY UNDER SECTION 16 (“INDEMNIFICATION”); (B) SUBSCRIBER’S OBLIGATIONS OR LIABILITY UNDER SECTION 5 (“USAGE RESTRICTIONS”) OR SECTION 6 (“PRICING AND PAYMENT”); OR (C) EITHER PARTY’S LIABILITY FOR ITS GROSS NEGLIGENCE CONSTITUTING A RECKLESS DISREGARD FOR THE RIGHTS AND SAFETY OF OTHERS, FRAUD, OR WILLFUL MISCONDUCT.
Venmark reserves the right to update these TOS from time to time, in its sole but reasonable discretion. Any such amendment shall be effective from and after the date that Venmark posts the updated TOS or otherwise makes the updated TOS available to Subscriber; provided, however, for existing Orders, updates made by Venmark to these TOS shall not apply until the next Subscription renewal term unless the update relates to new Subscription Services modules, features, or functionality, the update is required by Venmark’s third-party suppliers, or earlier adoption is required under applicable laws or regulations. Subject to the foregoing, Subscriber’s continued access to or use of the Subscription Services after Venmark has updated these TOS shall signify Subscriber’s acceptance of the amended terms.
Governing Law. These TOS shall be governed and interpreted for all purposes by the laws of the State of Missouri, U.S.A., without reference to any conflict of laws principles that would require the application of the laws of a different jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (as enacted in any jurisdiction) do not and shall not apply to these TOS, and are hereby specifically excluded.
Jurisdiction; Venue. Any dispute, action or proceeding arising out of or related to the Services, these TOS, or any Order, or the interpretation or enforcement hereof, shall be commenced in the state courts of St. Louis County, Missouri or, if proper subject matter jurisdiction exists, the United States District Court for the Eastern District of Missouri. Each party unconditionally and irrevocably submits to the personal jurisdiction and exclusive venue of such courts and waives any objection thereto, including based on forum non conveniens.
WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY DISPUTE, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THE SERVICES, THESE TOS, OR ANY ORDER.
Equitable Relief. Each party acknowledges that any breach of the confidentiality or intellectual property provisions of these TOS may cause irreparable harm to the other party, the extent of which would be difficult and impracticable to assess, and that money damages may not be an adequate remedy for such breach. Accordingly, in connection with any such breach or threatened breach, in addition to all other remedies available at law or in equity, each party shall be entitled to seek injunctive and other non-monetary equitable relief in any court or other body of competent jurisdiction.
Relationship. Venmark is being engaged by Subscriber under these TOS as an independent contractor. Nothing in these TOS is intended or shall be construed to create any agency, employment, partnership, franchise, fiduciary, or joint venture relationship between the parties. Neither party has, nor shall it represent that it has, the right, power or authority to make any commitments or assume any obligations on the other party’s behalf.
Assignments. Neither party may assign or otherwise transfer these TOS or any Order, in whole or in part, without the prior written consent of the other party; provided, however, upon written notice to the other party, either party may assign these TOS and the Orders to an affiliate and/or successor upon the assigning party’s merger, acquisition,
corporate reorganization, or sale of all or substantially all of its business or assets, provided that the assignee is capable of performing under and legally bound by the provisions hereof. Any attempted assignment or transfer in violation of the foregoing shall be null and void from the beginning and of no effect.
Subcontracting. Venmark may utilize subcontractors, service providers, and sub-processors in connection with these TOS or any Order. Venmark shall remain responsible for performance of the Services under these TOS and the Order notwithstanding any such subcontracting arrangement. Upon Subscriber’s written request, Venmark agrees to identify any material subcontractors, service providers, and sub-processors that are utilized in connection with a corresponding Order. Venmark’s subcontractors, service providers, and sub-processors assume no direct obligations or liability of any kind to Subscriber in connection with the Services, these TOS, or any Order.
Third Party Beneficiaries. These TOS are between Venmark and Subscriber and, except as otherwise expressly provided herein, do not extend any rights to or impose any obligations on third parties. Notwithstanding the foregoing, Venmark’s third-party suppliers, subcontractors, service providers, and sub-processors are and shall be deemed included under (but shall not otherwise expand) the disclaimers, limitations on liability, confidentiality, intellectual property, and indemnification protections afforded to Venmark under these TOS.
Notices. All notices under these TOS must be in writing and the English language. Notices to Venmark shall be delivered by postage prepaid registered or certified mail to:
Venmark Capital Solutions, Inc.
Attn: Legal Department
1034 S. Brentwood Blvd.
St. Louis, MO 63117
Notices to Subscriber may be delivered by postage prepaid registered or certified mail or email to Subscriber’s most current address on file. Alternatively, Venmark may deliver notices using the communication preferences designated by Subscriber for the Subscription Services. Either party may change its address for notices by providing written notice of such change to the other party in the foregoing manner.
Force Majeure. A party shall be excused from any failure or delay in the performance of its obligations under these TOS or any Order (other than Subscriber’s payment obligations) to the extent arising out of or resulting from acts of God, acts of war or terrorism, governmental actions, riots, insurrections, natural disasters, epidemics, pandemics, Internet, telecommunications or power failures, or other events outside of such party’s reasonable control. A party claiming excuse under this section shall use commercially reasonable efforts to notify the other party, mitigate the adverse effects, and resume performance as soon as commercially practicable.
Publicity. Neither party shall, without the prior written consent of the other party, issue any press release or, except as required by law, make any public filings or statements concerning the parties’ relationship or activities under these TOS, use the other party’s name, logo or trademarks for advertising, marketing, or publicity purposes, nor, in Subscriber’s case, disclose the pricing or terms of any Order to any third party; provided, however, each party may identify Subscriber as a user of the Subscription Services and Venmark may include Subscriber on its website and customer lists in a manner consistent with how Venmark identifies other subscribers.
Export Control. Subscriber may not import, export, re-export or use the Services except as authorized by United States law and the laws of the jurisdiction in which the Services were obtained. Without limiting the foregoing, the Services may not be exported or re-exported into any U.S. embargoed countries, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. Subscriber represents that it and its Users are not located in, under the control of, or a national or resident of any country or on any such list, and warrants that it and its Users shall not use the Services for any purpose prohibited by United States law.
Federal Government End Use Provisions. Venmark provides the Services, including related software and technology, for ultimate federal government end use in accordance with the following: The Services consists of “commercial items,” as defined at FAR 2.101. In accordance with FAR 12.211-12.212 and DFARS 227.7102-4 and 227.7202-4, as applicable, the rights of the U.S. Government to use, modify, reproduce, release, perform, display, or disclose commercial computer software, commercial computer software documentation, and technical data furnished in
connection with the Services shall be as provided in these TOS, except that, for U.S. Department of Defense end users, technical data customarily provided to the public is furnished in accordance with DFARS 252.227-7015. If a government agency needs additional rights, it must negotiate a mutually acceptable written addendum to these TOS specifically granting those rights.
Severability; Construction. The captions and section headings in these TOS are for reference purposes only and shall not affect the meaning or interpretation of these TOS. The term “including” as used herein means “including without limitation.” If any provision of these TOS is determined to be unenforceable under applicable law, such provision shall be amended by a court of competent jurisdiction to accomplish the objectives of such provision to the greatest extent possible under applicable law, or severed from these TOS if such amendment is not possible, and the remaining provisions of these TOS shall continue in full force and effect.
Amendment; Waiver. Except as provided in the “Changes to These Terms of Service” section above, any amendment to these TOS or any Order, or waiver of any obligation, right or remedy under these TOS or any Order, must be in writing and signed by each party. Any waiver on one occasion shall not constitute a waiver on subsequent occasions.
Entire Agreement. These TOS (including the Orders entered into hereunder) set forth the entire agreement of the parties and supersede all other proposals, agreements and understandings, whether written or oral, pertaining to the subject matter hereof, including any prior confidentiality or non-disclosure agreements. To the extent of any conflict between these TOS and any Order, these TOS take precedence and shall control; provided, however, if Venmark and Subscriber have mutually agreed upon and expressly identified specific amendments to these TOS in an Order, such specific amended terms shall take precedence and control over any conflicting terms in these TOS, solely with respect to such Order. Where Subscriber requires a purchase order as part of its procurement process, such purchase order may be issued for administrative purposes only. Any additional or conflicting terms therein shall not be binding, and are hereby objected to and expressly rejected.
Copyright 2021 Venmark Capital Solutions, Inc. Venmark™ is a protected trademark of Venmark Capital Solutions, Inc. or its affiliated entity. All rights reserved.
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