Vendia Services Agreement

PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.

The Vendia Services Agreement is a contract that governs our customers' use of the Vendia services. It consists of the following documents:

General Terms: These contain the core legal and commercial terms that apply to your use of our products and services. Any references to Master Terms means these General Terms.

Product Specific Terms: These include any additional terms that apply to your use of each of our product offerings, our consulting and other services, and third-party services.

Jurisdiction Specific Terms: Depending on your location, some of these jurisdiction-specific terms will apply to you. They’ll also explain which HubSpot entity you’re contracting with, and which laws will govern our relationship.

Data Processing Agreement (DPA): This explains how we process your data and includes the EU Standard Contractual Clauses.

Acceptable Use Policy (AUP): This is the rulebook setting out what you can and can’t do while using our products and services.

General Terms

Last updated: November 26, 2021.

This Vendia Services Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of our Services (as defined below) and is an agreement between Vendia, Inc. (also referred to as “Vendia,” “we,” “us,” or “our”) and you or the entity you represent (referred to as “you” or “your”). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 15 for definitions of certain capitalized terms used in this Agreement.

1. Use of the Services.

1.1 Generally. You may access and use the Services in accordance with this Agreement. Service Level Agreements and Service Terms apply to certain Service Offerings (all as defined below). You will comply with the terms of this Agreement and all laws, rules and regulations applicable to your use of the Services.

1.2. You may not transfer outside the Services any software (exclusive of public Github repository content) you obtain from us or third party licensors in connection with the Services without specific authorization to do so.

1.3. You must comply with current technical documentation applicable to the Services (including applicable developer guides) posted on the Vendia Site.

1.4 You agree to follow any technical, operational, or development guidelines issued by Vendia with respect to interacting with the Services and associated APIs.

1.5. You will provide information or other materials related to Your Content (including copies of any client-side applications) as reasonably requested by us to verify your compliance with the Agreement. You will reasonably cooperate with us to identify the source of any problem with the Services that we reasonably believe may be attributable to Your Content or any end user materials that you control.

1.6. If you upload software (such as a smart contract) to the Services, you agree that you have, and can provide upon request to us or our agents, clear license and title to use the software in that manner. Similarly, for any data you upload to the Services you agree you are not in violation of content, usage, or other licenses, restrictions, laws, copyrights, or regulations through the creation, possession, or usage of such data. If we reasonably believe any of Your Content violates the law, infringes or misappropriates the rights of any third party, or otherwise violates a material term of this Agreement (including the documentation, the Service Terms, or the Acceptable Use Policy) (“Prohibited Content”), we may notify you of the Prohibited Content and may request that such content be removed from the Services or have its access disabled (though we are not required to detect and report such violations on your behalf). If we request that you take action and you do not remove or disable access to the Prohibited Content within 2 business days of our notice, we may remove or disable access to the Prohibited Content or suspend the Services to the extent we are not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, we may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Services or in accordance with applicable law or any judicial, regulatory or other governmental order or request. In the event that we remove Your Content without prior notice, we will provide prompt notice to you unless prohibited by law. We terminate the accounts of repeat infringers in appropriate circumstances. Notwithstanding the foregoing, we are not required to evaluate or monitor your content and are not responsible for your compliance with laws, regulations, licenses, contracts, or other requirements to which you or your content may be subject.

1.7. You agree your communications with Vendia regarding your applications, data, usage, billing, and all other matters will be accurate and complete.

1.8 In the event of a serious security or operational event, you agree to reasonable and timely cooperation to prevent damage to Vendia or its customers by applying patches, upgrading services, or similar activities when directed by us.

1.9. From time to time, we may apply upgrades, patches, bug fixes, or other maintenance to the Services and Vendia Content (“Maintenance”). We agree to use reasonable efforts to provide you with prior notice of any scheduled Maintenance (except for emergency Maintenance), and you agree to use reasonable efforts to comply with any Maintenance requirements that we notify you about.

1.10. You agree not to engage in DDOS, "pen tests", security vulnerability testing, stress, or benchmark testing (each, a “Benchmark”) , or other forms of usage outside of normal development and production use without written permission from us. With written permission, if you perform or disclose, or direct or permit any third party to perform or disclose, any Benchmark of any of the Services, you (i) will include in any disclosure, and will disclose to us, all information necessary to replicate such Benchmark, and (ii) agree that we may perform and disclose the results of Benchmarks of your products or services, irrespective of any restrictions on Benchmarks in the terms governing your products or services.

1.11.In the course of deploying and using the Services, you may need to provision, deploy, or operate additional public cloud services and resources for which you will be billed directly. You agree to abide by the terms of the cloud vendor service agreement (and any other applicable agreements) and to financial responsibility for your use of those services. You explicitly agree that Vendia's interaction with such services, such as calling their APIs or adding or modifying data in them, does not alter your financial responsibility or create any financial responsibility on the part of Vendia.

1.12. When you use a Service, you may be able to use or be required to use one or more other Services (each, an “Associated Service”), and when you use an Associated Service, you are subject to the terms and fees that apply to that Associated Service.

1.13. If you process the personal data of End Users or other identifiable individuals in your use of a Service, you are responsible for providing legally adequate privacy notices and obtaining necessary consents for the processing of such data. You represent to us that you have provided all necessary privacy notices and obtained all necessary consents. You are responsible for processing such data in accordance with applicable law.

1.14. If you have been charged for a Service Offering for a period when that Service Offering was unavailable or operating with reduced capacity, you may be entitled to a service credit. The Service Level Agreement (“SLA”) for that Service Offering shall determine the nature and extent of any such credit.

1.15. You agree to prompt and full payment of Vendia charges and that we may suspend your use of our Services if your account is in arrears by more than 30 days.

1.16. Data Protection.

1.16.1 You agree to take all necessary steps to abide by, and remain in compliance with, GDPR and any other applicable data or customer privacy laws if you store such data (or code that operates on such data) using the Services.

1.16.2. Following closure of your Vendia account, we will delete Your Content except as otherwise provided in this Agreement or the documentation or Service Terms for the applicable Service Offering.

2. Changes.

2.1 To the Services. We may change or discontinue any of the Services from time to time. We will provide you at least 6 months prior notice if we discontinue material functionality of a Service Offering that you are using, and at least 3 months prior notice if we materially alter a customer-facing API that you are using in a backwards-incompatible fashion, except that this notice will not be required if the applicable notice period (a) would pose a security or intellectual property issue to us, other customers, or the Services, (b) is economically or technically burdensome, or (c) would cause us to violate legal requirements.

2.2 To the Service Level Agreements. We may change, discontinue or add Service Level Agreements from time to time in accordance with Section 13.

3. Security and Data Privacy.

3.1 Vendia Security. We will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.

3.2 Data Privacy. You may specify the cloud service provider(s) (the “CSP”) and region(s) in which Your Content will be stored. You consent to the storage of Your Content in, and transfer of Your Content into, all CSP regions you select. If you use the Services to create data sharing relationships with others (“Partners”), you consent to the transfer of your data to, and their data from, the CSPs and regions in which your Partners operate. We will not access or use Your Content except as necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental body. We will not (a) disclose Your Content to any government or third party, move Your Content from the CSP regions selected by you (except to perform the data sharing relationships with your Partners as you have requested of our Services); except in each case as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order referred to in this Section 3.2. We will only use your Account Information in accordance with the Privacy Notice, and you consent to such usage. The Privacy Notice does not apply to Your Content.

3.3 Service Attributes. To provide billing and administration services, we may process Service Attributes in the CSP region(s) where you use the Services and the CSP regions in the United States. To provide you with support services initiated by you and investigate fraud, abuse or violations of this Agreement, we may process Service Attributes where we maintain our support and investigation personnel.

4. Your Responsibilities.

4.1 Your Accounts. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.

4.2 Your Content. You will ensure that Your Content and your and End Users’ use of Your Content or the Services will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.

4.3 Your Security and Backup. You are responsible for properly configuring and using the Services and otherwise taking appropriate action to secure, protect and backup your accounts and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.

4.4 Log-In Credentials and Account Keys. Vendia log-in credentials and private keys generated by the Services are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.

4.5 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, Your Content or use of the Services. You are responsible for End Users’ use of Your Content and the Services. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to Your Content and the Services by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services.

5. Fees and Payment.

5.1 Service Fees. We calculate and bill fees and usage-related charges monthly. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Services as described on the Vendia Site using one of the payment methods we support. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service Offering or new feature of a Service Offering will be effective when we post updated fees and charges on the Vendia Site, unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Service Offerings you are using by giving you at least 30 days prior notice. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

5.2 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes, except where applicable law requires otherwise. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, except as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. If your business is classified as tax free, including 503(c) classification in the United States, you may be required to provide us with proof of federal or state tax exemption to avoid our collection of such payments.

6. Temporary Suspension.

6.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Services immediately upon notice to you if we determine:

(a) your or an End User’s use of the Services (i) poses a security risk to the Services or any third party, (ii) could adversely impact our systems, the Services or the systems or Content of any other Vendia customer, (iii) could subject us to liability, or (iv) could be fraudulent;

(b) you are, or any End User is, in breach of this Agreement;

(c) you are in breach of your payment obligations under Section 5; or

(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Services:

(a) you remain responsible for all fees and charges you incur during the period of suspension; and

(b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.

7. Term; Termination.

7.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 7. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 7.2.

7.2 Termination.

(a) Termination for Convenience. Unless you are subject to a separate licensing contract with us, you may terminate this Agreement for any reason by providing us notice and closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 30 days advance notice, unless we have previously contracted with you for an alternative period.

(b) Termination for Cause.

(i) By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. No later than the Termination Date, you will close your account.

(ii) By Us. We may also terminate this Agreement immediately upon notice to you (A) for cause if we have the right to suspend under Section 6 or (B) in order to comply with the law or requests of governmental entities.

(iii) If we have previously entered into a separate agreement with you that includes term and/or termination conditions, then the terms of that separate agreement shall prevail and it shall be as if Section 7 were replaced with the respective terms of that agreement.

7.3 Effect of Termination.

Generally. Upon the Termination Date:

(i) except as provided in Section 7.3(b), all your rights under this Agreement immediately terminate;

(ii) you remain responsible for all fees and charges you have incurred through the Termination Date and are responsible for any fees and charges you incur during the post-termination period described in Section 7.3(b);

(iii) you will immediately return or, if instructed by us, destroy all Vendia Content in your possession; and

(iv) Sections 4.1, 5, 7.3, 8, 9 (except Section 9.3), 10, 11, 12, 14 and 15 will continue to apply in accordance with their terms.

(b) Post-Termination. Unless we terminate your use of the Services pursuant to Section 7.2(b), during the 30 days following the Termination Date:

(i) we will not take action to remove from the Services any of Your Content as a result of the termination; and

(ii) we will allow you to retrieve Your Content from the Services only if you have paid all amounts due under this Agreement.

For any use of the Services after the Termination Date, the terms of this Agreement will apply and you will pay the applicable fees at the rates under Section 5.

8. Betas and Previews

8.1. This Section 8 describes the additional terms and conditions under which you may (a) access and use certain features, technologies, and services made available to you by Vendia that are not yet generally available, including, but not limited to, any products, services, or features labeled “alpha”, “beta”, “preview”, “pre-release”, “demo”, “prototype”, "early access", or “experimental”, and any related Vendia Content (each, a “Beta Service”).

8.2. You must comply with all terms related to any Beta Service as posted on the Vendia Site or otherwise made available to you. Vendia may add or modify terms, including lowering or raising any usage limits, related to access to or use of any Beta Services at any time. Service Level Agreements do not apply to Beta Services. Vendia may add, remove, or modify features in any Beta Service without prior notice, and your use of Beta Services constitutes acceptance of the associated risks.

8.3. You may provide Vendia with information relating to your access, use, testing, or evaluation of Beta Services, including observations or information regarding the performance, features, and functionality of Beta Services (“Test Observations”). Vendia will own and may use and evaluate all Test Observations for its own purposes. You will not use any Test Observations except for your internal evaluation purposes of any Beta Service.

8.4. Vendia may suspend or terminate your access to or use of any Beta Service at any time. Your access to and use of each Beta Service will automatically terminate upon the release of a generally available version of the applicable Beta Service or upon notice of termination by Vendia. Notwithstanding anything to the contrary in the Agreement, after suspension or termination of your access to or use of any Beta Service for any reason, (a) you will not have any further right to access or use the applicable Beta Service, and (b) Your Content used in the applicable Beta Service may be deleted or inaccessible.

8.5. Test Observations, Suggestions concerning a Beta Service, and any other information about or involving (including the existence of) any Beta Service are considered Vendia Confidential Information.

8.6. WITHOUT LIMITING ANY DISCLAIMERS IN THE AGREEMENT OR THE SERVICE TERMS, BETA SERVICES ARE NOT READY FOR GENERAL COMMERCIAL RELEASE AND MAY CONTAIN BUGS, ERRORS, DEFECTS, OR HARMFUL COMPONENTS. ACCORDINGLY, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR THESE SERVICES TERMS, VENDIA IS PROVIDING BETA SERVICES TO YOU “AS IS.” VENDIA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING BETA SERVICES, INCLUDING ANY WARRANTY THAT THE BETA SERVICES WILL BECOME GENERALLY AVAILABLE, BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, VENDIA DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. VENDIA’S LIABILITY FOR ANY BETA SERVICES WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE BETA SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.

9. Proprietary Rights.

9.1 Your Content. Except as provided in this Section 9, we obtain no rights under this Agreement from you (or your licensors) to Your Content. You consent to our use of Your Content to provide the Services to you and any End Users, including the data transfer provided for in the Partner sharing agreements you enter into using our Services.

9.2 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Suggestions; (b) you have all rights in Your Content and Suggestions necessary to grant the rights contemplated by this Agreement; and (c) none of Your Content or End Users’ use of Your Content or the Services will violate the Acceptable Use Policy.

9.3 Intellectual Property License. The Services, Vendia Content, and all related technology and intellectual property rights are the proprietary information of Vendia. Vendia grants you a limited, royalty-free, revocable, non-exclusive, non-sublicensable, non-transferable license to copy and use the Vendia Content solely in connection with your permitted use of the Services during the Term. Solely to the extent that applicable law requires the exercise of intellectual property rights owned by Vendia or its licensors for you to access or use any Service, Vendia grants you a limited, royalty-free, revocable, non-exclusive, non-sublicensable and non-transferable license to exercise such intellectual property rights during the Term and subject to the terms of such license and this Agreement. No other entity is entitled to or purports to grant or procure the grant of such license. You obtain no other rights under this Agreement or such license from Vendia, its affiliates or suppliers to the Services and Vendia Content, including any related intellectual property rights. Some Vendia Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source license. In the event of a conflict between the license granted by Vendia and any such separate license, such separate license will prevail with respect to the Vendia Content that is the subject of such separate license.

9.4 Restrictions. Neither you nor any End User will use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to (a) reverse engineer, disassemble, or decompile the Services or Vendia Content or apply any other process or procedure to derive the source code of any software included in the Services or Vendia Content (except to the extent applicable law doesn’t allow this restriction), (b) access or use the Services or Vendia Content in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (c) resell the Services or Vendia Content. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you except as expressly permitted by this Agreement.

9.5 Suggestions. If you provide any Suggestions, we will be entitled to use these without restriction or attribution. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.

10. Indemnification.

10.1 General. You will defend, indemnify, and hold harmless us, our licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses (as defined below) arising out of or relating to any third-party claim concerning: (a) your or any End Users’ use of the Services (including any activities under your Vendia account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you, End Users or Your Content; or (c) a dispute between you and any End User. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a) through (c) above at our then-current hourly rates.

10.2 Intellectual Property.

(a) Subject to the limitations in this Section 10, you will defend Vendia against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.

(b) Neither party will have obligations or liability under this Section 10.2 arising from infringement by combinations of the Services or Your Content, as applicable, with any other product, service, software, data, content or method. In addition, Vendia will have no obligations or liability arising from your or any End User’s use of the Services after Vendia has notified you to discontinue such use. The remedies provided in this Section 10.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Services or by Your Content.

10.3 Process. The obligations under this Section 10 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.

11. Disclaimers.

THE SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICES AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICES OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

12. Limitations of Liability.

WE WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICES, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SERVICE LEVEL AGREEMENTS, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. OUR LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 12 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

13. Modifications to the Agreement.

We may modify this Agreement (including any Policies) at any time by posting a revised version on the Vendia Site or by otherwise notifying you in accordance with Section 14.10. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Vendia Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the top of this Agreement.

14. Miscellaneous.

14.1 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 14.1 will be void. We may assign this Agreement without your consent (a) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (b) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for Vendia as a party to this Agreement and Vendia is fully released from all of its obligations and duties to perform under this Agreement. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.

14.2 Entire Agreement. This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control, except that the Service Terms will control over this document.

14.3 Force Majeure. We will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

14.4 Governing Law. The laws of the State of California, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

14.5 Disputes. Any dispute or claim relating in any way to your use of the Services will be adjudicated in the state and federal courts located in San Francisco, California, and you consent to exclusive jurisdiction and venue in such courts.

14.6 Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Services, including your transfer and processing of Your Content, the provision of Your Content to End Users, and the CSP region in which any of the foregoing occur. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.

14.7 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.

14.8 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

14.9 Confidentiality and Publicity. You may use Vendia Confidential Information only in connection with your use of the Services as permitted under this Agreement. You will not disclose Vendia Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Vendia Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this Agreement or your use of the Services.

14.10 Notice.

(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Vendia Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on the Vendia Site will be effective upon posting and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.

(b) To Us. To give us notice under this Agreement, you must contact Vendia by personal delivery, overnight courier or registered or certified mail to the mailing address, listed on the Vendia Site. We may update the address for notices to us by posting a notice on the Vendia Site. Notices provided by personal delivery will be effective immediately. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.

\ 14.11 No Third-Party Beneficiaries. Except as set forth in Section 10, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

14.12 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.

14.13 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

15. Definitions

“Account Information” means information about you that you provide to us in connection with the creation or administration of your Vendia account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your Vendia account.

“API” means an application program interface.

“Content” means software (including machine images), data, text, audio, video or images.

“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content; or (b) otherwise accesses or uses the Services under your account. The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own Vendia account, rather than under your account.

“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.

“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).

“Policies” means the Acceptable Use Policy, Privacy Notice, the Service Terms, all restrictions described in the Vendia Content and on the Vendia Site, and any other policy or terms referenced in or incorporated into this Agreement, but does not include whitepapers or other marketing materials referenced on the Vendia Site.

“Services” means the services made available by us, including those services described in the Service Terms, including associated APIs and Vendia Content.

“Service Attributes” means Service usage data related to your account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.

“Service Level Agreement” means the service level agreement that we offer with respect to a particular Service Offering and post on the Vendia Site, as such agreement may be updated by us from time to time. The service level agreements we offer with respect to the Service Offerings are located at https://[www.vendia.com/share-service-level](http://www.vendia.com/share-service-level) (and any successor or related locations designated by Vendia), as may be updated by Vendia from time to time.

“Service Offering” means a particular set of Services provided by us under this Agreement.

“Service Terms” means the additional terms and conditions applicable to a particular Service Offering that we post on the Vendia Site, as they may be updated by us from time to time. The Service Terms with respect to the Service Offerings are located at https://[www.vendia.com/share-service-terms](http://www.vendia.com/share-service-terms) (and any successor or related locations designated by Vendia), as may be updated by Vendia from time to time.

“Suggestions” means all suggested improvements to the Services that you provide to us, including all comments made on public forums or other public or multi-user communication channels we own or operate and all material uploaded to (or commented on) in any public repository we own or operate, whether in reference to Vendia Content or not. Suggestions include, but are not limited to, code samples, suggested revisions, comments related to the Services or their features, and discussions of performance or other service characteristics.

“Vendia Confidential Information” means technical and non technical information related to Vendia’s business and current, future and proposed products and services that is identified as confidential at the time of disclosure or would be generally understood by a reasonable person as constituting confidential information, provided that such information does not include information that the recipient can document: (i) was in the public domain at or subsequent to the time such information was communicated to recipient through no fault of recipient; (ii) was rightfully in the recipient’s possession free of any obligation of confidence at or subsequent to the time such information was communicated to the recipient; or (iii) was developed by the recipient independently of and without reference to any Vendia Confidential Information.

“Vendia Content” means Content we or any of our affiliates make available in connection with the Services or on the Vendia Site to allow access to and use of the Services, including APIs; documentation; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by our personnel). Vendia Content does not include the Services.

“Vendia Site” means http://www.vendia.com (and any successor or related site designated by us), as may be updated by us from time to time.

“Your Content” means Content that you or any End User transfers to us for processing, storage or hosting by the Services in connection with your Vendia account and any computational results that you or any End User derive from the foregoing through their use of the Services. For example, Your Content includes Content that you or any End User stores in Vendia Share Service Offering.