Membership Terms
This Program Membership Agreement (collectively with any documents incorporated by reference, the “Agreement”) is by and between Vizer, Inc., a Delaware corporation (“Vizer”) and the entity identified in the applicable Order Form (“Member”). (Each a “Party” and collectively, the “Parties”).
THE EFFECTIVE DATE OF THIS AGREEMENT SHALL COMMENCE UPON MEMBER’S ACCEPTANCE OF THIS AGREEMENT BY CLICKING ‘ACCEPT’ OR EXECUTING AN ORDER THAT INCORPORATES THIS AGREEMENT BY REFERENCE. BY ACCEPTING THIS AGREEMENT MEMBER AGREES TO COMPLY AND BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS. IF MEMBER DOES NOT HAVE AUTHORITY OR DOES NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, MEMBER MAY NOT USE THE SERVICES.
Capitalized terms not otherwise defined have the meaning set forth in Section 12 (Definitions).
1. SERVICES
1.1. Scope. Vizer’s membership-based Program offers access to the Vizer ecosystem, which helps Members with their community outreach goals and benefit from certain Member promotional offerings, which may include Velocity Offers (as defined below) (collectively, “Member Offers”). The Program includes access (i) to the Vizer Market Program, which encompasses various Member Offers and access to certain Offer Pages of such Members; and (ii) to the Velocity Program, which powers retail incentives via digital distribution of Velocity Offers (as defined below). (collectively, all of these, Vizer “Program Services”).
1.2. Provision of Program Services. Vizer shall make the Program Services available to Member pursuant to this Agreement and the applicable Order Forms during each Membership Term, subject to Member’s timely payment of all applicable fees. Member’s purchases of Program Services are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Vizer regarding future functionality or features. Vizer may, in its sole discretion, modify, enhance and/or expand the Program Services at no additional cost to Member. Vizer may also modify, enhance or expand the Program Services by providing additional features, programs or functionality, which may, but are not required to be, added by Member to this Agreement at additional cost. Such additional cost features and functionality may be added by mutual written agreement of the Parties.
1.3. Membership. Unless otherwise specified in the applicable Order Form, (a) Program Services are purchased as a Membership, where Member gets the right to offer access to the Member Offers to the individuals in Vizer’s ecosystem and others who are directed to the Vizer Platform; (b) when executing an Order Form, Member must choose the Program Services that it wants to have access to, including using any promotional signup credits for services; and (c) additional Program Services may be purchased during the Membership Term by signing an additional Order Form and paying the additional fees for such additional Program Services. The Program Services are subject to any usage limits that may be specified in the Order Forms
1.4. License Grant and No Agency. Subject to Member’s compliance with all of the terms and conditions of this Agreement, Vizer hereby grants Member (and its Authorized Users), a limited, revocable, non-exclusive, non-transferable right to access/use the Platform, solely in connection with Member’s use of the Program Services under this Agreement. Vizer does not represent Member as an agent, nor collects, handles, or processes data on behalf of Member.
1.5. Program Services. Subject to Member’s choices in the applicable Order Form, as part of the Vizer Membership, Vizer offers at minimum (and without limitation) the following Program Services:
(a) Vizer Market Program. By this program, Member can distribute Member Offers via Vizer’s owned and partner distribution channels, including, but not limited to, Vizer’s web-based Offer hosting site, partner email newsletter, website, apps, or in-person channels. Vizer's Offer hosting site placements will include a photo and description of the Member Offer, as well as a link to such Offer either within the environment or via the Velocity Program. Placements within Vizer's distribution channel may differ based on the format of the medium. Vizer does not guarantee any specific volume or conversion through these owned channels.
(b) Velocity Program. By this program, Member can participate in sampling and/or providing discounted incentives, hosted by Vizer, for Member’s own products redeemable at select retail locations. Vizer uses proprietary web-based technology to deliver incentives through digital channels via one universal link redeemable with a single-use barcode and/or QR code at the in-store point of sale system ("Velocity Offers"). The individuals in Vizer’s ecosystem and others who are directed to the Vizer Platform will opt in to receive a unique link via Email or SMS communication containing the Velocity Offer ("Clip"). A single-use Vizer-hosted link will be used to delivery Clips and direct individuals to Velocity Offers. A Clip will only apply once an individual inputs information and sends the Velocity Offer to themselves via Vizer’s landing page. Member must disclose any planned distribution channels and Vizer will assist with any instructions that may apply. Vizer will provide ongoing reporting to Member, including, but not limited to, Clip usage and redemption rate attributed from placement of the link by Member. Offers may be dispersed and clipped at any time throughout the Membership Term. Monthly volume caps are available by request via the Vizer Account Manager. Additional Terms detailing pricing, processes, and acceptance to be included in a Statement of Work in conjunction with the Order Form.
2. GENERAL LIMITATIONS ON PROGRAM SERVICES
2.1. Vizer Responsibilities. As part of the Program Services, Vizer will (a) provide Member with Vizer’s standard support for the Program Services via an Account Manager at no additional charge, and/or upgraded support if purchased for an additional fee, and (b) use commercially reasonable efforts to make the Platform (and the Program Services provided therein) available 24 hours a day, 7 days a week, except for any unavailability caused by circumstances beyond Vizer’s reasonable control, including, for example, an act of God, act of government, national emergency, pandemic, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Vizer’s employees), Internet service provider failure or delay, failure or delay of service from any third party cloud computing services provider, or denial of service attack. Vizer will provide support services and service level commitments in accordance with its standard policies, as in effect from time-to-time, which are available at Vizer’s Website and will be provided on request. Vizer reserves the right to modify its maintenance and support services documentation from time-to-time and, other than immaterial changes and corrections, will give Member reasonable notice of modifications thereto. With respect to any SOW or Order Form, the Account Manager will review, approve and execute any Member requests, including all Member Offer texts, images and general content, as needed, and request additional information via email, phone and/or video call from Member.
2.2. Member Responsibilities. Member shall (a) be responsible for its own and for Authorized Users’ compliance with this Agreement, (b) be solely responsible for the accuracy, quality, integrity, and legality of Member Data and of the means by which Member acquired Member Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform and/or the Program Services, and notify Vizer promptly of any such unauthorized access or use, (d) use the Program Services only in accordance with the Documentation and applicable laws and government regulations, and (e) provide Vizer with assistance, information and materials that are reasonably requested as necessary to effectively provide the Program Services.
2.3. Restrictions. Member will not, directly or indirectly, do any of the following: (a) make any Program Services available to, or use any Program Services for the benefit of, anyone other than Member or its Authorized Users; (b) sell, resell, license, sublicense, distribute, rent or lease any Program Service, or include any Program Services in a service bureau or outsourcing offering; (c) use the Platform or Program Services 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; (d) use the Platform or the Program Services to store or transmit code, files, scripts, agents or programs intended to do harm (including, for example, viruses, worms, time bombs and Trojan horses); (e) interfere with or disrupt the integrity or performance of any Program Services, the Platform or third-party data contained therein; (f) attempt to gain unauthorized access to any Program Services, the Platform or the Technology; (g) permit direct or indirect access to or use of any Program Services or Technology in a way that circumvents a contractual usage limit, if any, (h) copy any part, feature, function or user interface of the Platform or the Program Services; (i) access any Program Services or Technology in order to build a competitive product or service; or (j) reverse engineer, disassemble or decompile any portion of the Technology.
2.4. Member Data. The Program Services can be used to access and process Member Data in order to generate reports, analyses, documents, and/or results. If Member chooses to save such output, it will be saved as Member Data in Member’s account. Upon any termination, Vizer will make all Member Data available to Member for electronic retrieval for a period of sixty (60) days, but thereafter Vizer may, but is not obligated to, delete stored Member Data. Vizer will not access Member Data except in accordance with (a) the licenses granted to Vizer in Section 6.3 (Member Data; License); or (b) Section 5.4 (Compelled Disclosure).
3. PROFESSIONAL SERVICES
3.1.Professional Services. The Parties may, but are under no obligation to, enter one or more SOWs for Professional Services to be performed by Vizer. No Professional Services shall be furnished to Member by virtue of this Agreement alone, but shall require the execution of a SOW by both Parties. For the avoidance of doubt, a Vizer Account Manager is not a provider of Professional Services under a Order Form and/or SOW.
3.2. Scope Modifications. Member may at any time request a modification to the Professional Services to be performed pursuant to any particular SOW by making a written request to Vizer specifying the desired modifications. Vizer shall submit an estimate of the cost for such modifications and a revised estimate of the time for performance pursuant to the SOW. Modifications in any SOW shall become effective only when a written change request is executed by authorized representatives of both Parties.
3.3. Vizer Personnel. Vizer shall be responsible for securing, managing, scheduling, coordinating and supervising Vizer personnel, including its subcontractors, performing the Professional Services. Vizer will designate a Vizer project manager in each SOW who will be responsible for coordinating Vizer’s provision of Professional Services under such SOW. Vizer shall have the right to remove or replace any personnel providing Professional Services with similarly skilled personnel. Vizer shall provide reasonable notice to Member of any change in personnel providing Professional Services. Vizer may, in its sole discretion, subcontract or delegate any work under any SOW to any third party without Member’s prior written consent, provided that, Vizer shall remain responsible for the performance, acts and omissions of any such subcontractors. Member may request that Vizer remove or replace Vizer personnel if Member believes, in Member’s reasonable discretion, that such personnel’s involvement is inappropriate, unsafe or detrimental to the delivery of the Professional Services. In the event such a request is made, any project timelines shall automatically extend by the amount of time required to replace said personnel and assimilate them into the project.
3.4. Cooperation. Member shall perform its obligations as set forth in the applicable SOW, as well as the following obligations: (a) designate and provide one Member project manager who will be responsible for coordinating the Member obligations under a SOW; (b) provide sufficient, qualified, knowledgeable personnel capable of: (i) performing Member obligations set forth in each SOW; (ii) making timely decisions necessary to move the Professional Services forward; and (iii) participating in the project and assisting Vizer in rendering the Professional Services; and (c) in the case of on-site Professional Services, provide Vizer with reasonable access to Member’s facilities during Member’s normal business hours and otherwise as reasonably requested by Vizer, including such working space as Vizer may reasonably request. Member acknowledges and agrees that the performance by Member of its obligations is material to Vizer’s ability to commence, proceed with and complete the Professional Services. In the event Member does not perform Member obligations in a timely manner, Vizer may take any action as set forth in the applicable SOW, or terminate the applicable SOW in accordance with this Agreement.
3.5. Configuration. If Member contracts Vizer to provide configuration services for the Programs or for API-based integration with the Platform, Vizer will provide these services under a SOW for Professional Services.
4. FEES AND PAYMENTS
4.1. Fees. Member agrees to pay Vizer the fees and other amounts, including those associated with any Promotional Funding Account, set forth on all applicable Order Forms and SOWs. Except as otherwise specified in an Order Form, (a) fees for Program Services are based on Program Services purchased and not actual usage, (b) payment obligations are non-cancellable and fees paid are non-refundable, and (c) quantities or Programs purchased cannot be decreased during the relevant Membership Term. Except as otherwise specified in an SOW, fees for any and all Professional Services shall be based on then-current hourly rates.
4.2. Payment Terms. Unless otherwise specified in the applicable Order Form or SOW, all undisputed fees and other amounts due under this Agreement shall be due payable net thirty (30) calendar days after date of receipt by Member of the applicable invoice. Vizer may charge a late charge equal to the lesser of (a) one percent (1%) per month or (b) the maximum amount allowed by applicable law, on any outstanding past due balance that is not the subject of a good faith dispute. Member will provide complete and accurate billing and contact information to Vizer and promptly notify Vizer of any changes to such information. No Member Offers shall “go live” unless all undisputed fees are paid in accordance with the applicable Order Form or SOW and Member’s account is up to date as determined by the Account Manager.
4.3. Taxes. Member is responsible for, all taxes, duties, and assessments, if any, imposed on Member in connection with fees paid under the provisions of this Agreement, including without limitation, all sales, use, excise or other taxes and duties, and Vizer will include all such taxes, duties and assessments on each applicable invoice.
4.4. Expenses. Member shall reimburse Vizer for any reasonable, actual out-of-pocket expenses incurred and approved by Member, including travel expenses and related costs, incurred by Vizer employees and subcontractors, provided that such expense and costs are consistent with Member’s own travel policies and approved in advance by Member.
4.5. Disputed Charges. Member must notify Vizer in writing of any dispute or disagreement with invoiced charges within thirty (30) calendar days after the date of receipt of the applicable invoice by Member. Absent such notice, Member shall be deemed to have agreed to the charges as invoiced.
4.6. Suspension. If any amount owing by Member under this Agreement is thirty (30) or more days past due, Vizer may, without limiting its other rights and remedies, accelerate Member’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend the Program Services and/or Professional Services to Member until such amounts are paid in full. Vizer will give Member at least ten (10) days’ prior notice that Member’s account is overdue before implementing any such suspension.
5. CONFIDENTIAL INFORMATION
5.1. Access. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain Confidential Information of the other Party or Confidential Information of third parties that the disclosing Party is required to maintain as confidential.
5.2. Mutual Obligations. Except as may be expressly set forth in this Agreement, each Party that receives Confidential Information of the other Party agrees during the term of this Agreement and thereafter, to: (a) use the Confidential Information only for the purposes of performing this Agreement; (b) hold the Confidential Information of the other Party in confidence and restrict it from dissemination to, and use by, any third party; (c) protect the confidentiality of the other Party’s Confidential Information using the same degree of care, but no less than reasonable degree of care, as the receiving Party uses to protect its own Confidential Information; (d) not create any derivative work from Confidential Information of the other Party; and (e) restrict access to the Confidential Information of the other Party to such of its personnel, subcontractors, and/or consultants who have a need to have access to such Confidential Information, who have been advised of the confidential nature of such information, and who have agreed in writing to terms no less protective than the terms set forth in this Agreement with respect to the treatment of such Confidential Information.
5.3. Confidentiality Exceptions. Section 5.2 (Mutual Obligations) shall not apply to Confidential Information that is: (a) publicly available or in the public domain at the time disclosed; (b) publicly available, becomes publicly available or enters the public domain through no fault of the recipient; (c) rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) independently developed by the recipient without use of or reference to the disclosing Party’s Confidential Information and by employees or other authorized agents of the receiving Party who have not been exposed to the disclosing Party’s Confidential Information; or (f) approved for release or disclosure in writing by the disclosing Party.
5.4. Compelled Disclosure. Notwithstanding the foregoing, each Party may disclose Confidential Information of the other Party to the limited extent required to: (a) comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall, to the extent allowed by law, first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (b) establish a Party’s rights under this Agreement, including to make such court filings as it may be required to do.
5.5. Equitable Relief. The Parties acknowledge and agree that money damages would not be a sufficient remedy for breaches of this Section 5, and that each Party may seek injunctive relief, specific performance, or other equitable relief as a remedy for any such breach.
6. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
6.1. Vizer. As between the Parties, Vizer and its licensors own all right, title and interest, including all IP Rights, in and to all Vizer Confidential Information, the Technology, the Vizer Platform, the Program Services, and the Vizer Trademarks, including, without limitation, all modifications, improvements, upgrades, derivative works, and feedback related thereto, and any third party software provided by Vizer, and all software, associated documentation, hardware, materials, information, processes or subject matter that is proprietary to Vizer and is provided under this Agreement. Vizer expressly reserves all rights not expressly granted to Member under this Agreement and all executed Order Forms and SOWs. Member shall not knowingly engage in any act or omission that would impair the IP Rights of Vizer or its licensors. In no event shall Member obtain any ownership rights in or to the Confidential Information of Vizer, the Vizer Platform or any IP Rights of Vizer.
6.2. Member. Member and its licensors own all right, title and interest, including all IP Rights, in and to Member Trademarks, the Member Data and all Confidential Information disclosed by Member. Vizer shall not knowingly engage in any act or omission that would impair Member’s IP Rights or Confidential Information. In no event shall Vizer obtain any ownership rights in or to the Confidential Information of Member, the Member Data, Member Trademarks or Member’s IP Rights.
6.3. Member Data; License. As between Vizer and Member, Member exclusively owns all rights, title, and interest in and to all of the Member Data. Member hereby grants Vizer a worldwide, limited-term license to host, copy, transmit and display Member Data, as necessary for Vizer to provide the Program Services in accordance with this Agreement. Subject to the limited licenses granted herein, Vizer acquires no right, title or interest from Member under this Agreement in or to Member Data. Member hereby grants to Vizer a perpetual, non-exclusive, royalty-free license to (a) use Member Data in order to provide, monitor and improve the Program Services to Member; and (b) use all of Member Data that is anonymous and does not personally identify Member, or an Authorized User or visitor to the Platform for statistical, analytical and other aggregate use.
6.4. Trademark and Content; License. To the extent Member runs any Program that requires to identify Member on the Platform, Member hereby grants to Vizer a non-exclusive, non-sublicenseable, non-transferable right and license to configure Member’s branding elements in the Platform including displaying Member’s Trademarks solely as part of the Program Service being run on Member’s behalf. Member represents and warrants to Vizer that it owns all right, title and interest in, or otherwise have full and sufficient authority to use in the manner contemplated by this Agreement, any content furnished by Member to Vizer for incorporation into the Platform or the Program Services, including without limitation on Member’s Trademarks. Member hereby grants Vizer a limited, non-exclusive, royalty-free license to use such content in the manner contemplated by this Agreement and the applicable SOW.
6.5. Suggestions. Member hereby grants Vizer a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Program Services and/or Technology any suggestions, enhancement requests, recommendations, correction or other feedback provided by Member, including Authorized Users, relating to the functionality and/or operation of the Program Services and/or Technology.
6.6. Work Product. Unless otherwise specified in the applicable Statement of Work, all Work Product created under this Agreement, including all IP Rights related thereto, shall be owned by Vizer, exclusive of all of Member Confidential Information, Member Trademarks and/or Member Data and content. All Work Product created under this Agreement that is owned by Vizer is made available to Member to enable Member’s use of the Program Services pursuant to the terms of this Agreement. Vizer hereby grants Member a worldwide, non-exclusive, non- transferrable, non-sublicensable right and license to use the Work Product, solely in connection with Member’s use of the Program Services. Unless otherwise specified in the applicable SOW, to the extent Member acquires any rights in the Work Product, Member hereby assigns such rights to Vizer. Member shall give Vizer all reasonable assistance and execute all documents necessary to assist or enable Vizer to perfect, preserve, register and/or record such assignment and Vizer’s rights in any Work Product.
7. REPRESENTATIONS AND WARRANTIES
7.1. General. Each Party represents and warrants to the other that it has full power and authority to enter into and perform this Agreement, and that the execution and performance of this Agreement does not and shall not violate any other contract, obligation, or instrument to which it is a party, or which is binding upon it, including any confidentiality obligations.
7.2. Program Services Warranties. Vizer warrants that: (a) the Program Services shall perform materially in accordance with the Documentation and (b) subject to Section 7.3 (Third-Party Applications), the functionality of the Program Services will not be materially decreased during a Membership Term. For any breach of either such warranty, Member’s exclusive remedy shall be as provided in Section 10.5 (Termination for Breach). Member acknowledges that availability of the Program Services depends upon the availability of the Internet and any third-party cloud computing services provider and that Vizer has no control over such availability. Accordingly, Vizer makes no representations, warranties, or covenants regarding the availability of the Program Services to the extent that such availability depends upon the availability of the Internet or any third-party cloud computing services provider.
7.3. Third Party Applications. The Program Services have been built as a Platform-as-a-service on a cloud-computing platform. The Program Services are designed to work with the cloud- computing platform and with certain other Third-Party Applications. Member’s use of Third-Party Applications is governed entirely by the terms of Member’s agreement with the relevant third party. Nothing in this Agreement creates any rights or obligations on the part of Vizer with respect to such Third-Party Applications nor should this Agreement be construed as creating any rights or obligations on the part of any third party providing Third-Party Applications with respect to the Program Services provided by Vizer.
7.4. Professional Services Warranty; Exclusive Remedy. Vizer warrants the Professional Services performed hereunder will be performed in a professional and workmanlike manner, using sound principles, accepted industry practices and competent personnel (“Professional Services Warranty”). The Professional Services Warranty shall not apply if the Work Product is implemented, customized, modified, enhanced or altered by Member or any third party that is not specifically retained by Vizer as a contractor for such purposes. Member’s sole and exclusive remedy, and Vizer’s sole obligation, in the event of a breach of the Professional Services Warranty is for Vizer, at its expense, to re-perform the Professional Services which were not as warranted, provided Vizer has received notice from Member within thirty (30) calendar days of the completion of the Professional Services that Member alleges were not performed consistent with the Professional Services Warranty. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THIS SECTION 7.4 SETS FORTH MEMBER'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE PROFESSIONAL SERVICES WARRANTY.
7.5. Member warranty. Member represents and warrants to Vizer that it owns all right, title and interest in, or otherwise have full and sufficient authority to use in the manner contemplated by this Agreement, any Member Data and/or Member Trademarks furnished by Member to Vizer for incorporation into or use with the Program Services.
7.6. Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, VIZER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED OR STATUTORY, AND VIZER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. NO WARRANTY IS MADE BY VIZER ON THE BASIS OF TRADE USAGE OR COURSE OF DEALING. VIZER DOES NOT WARRANT THAT THE PROGRAM SERVICES, TECHNOLOGY, PLATFORM OR ANY OTHER INFORMATION, MATERIALS, DATA ASSETS, OR SERVICES PROVIDED UNDER THIS AGREEMENT WILL MEET MEMBER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
8. LIMITATIONS OF LIABILITY
8.1. EXCEPT FOR DAMAGES ARISING OUT OF (I) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) A PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S IP RIGHTS, OR (iii) WHERE A CLAIM RESULTS FROM INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, OR COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, EVEN IF THE PARTY FROM WHOM SUCH DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED.
8.2. EXCEPT FOR DAMAGES ARISING OUT OF (I) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) A PARTY’S MISAPPROPRIATION OF THE OTHER PARTY’S IP RIGHTS, OR (iii) WHERE A CLAIM RESULTS FROM INTENTIONAL MISCONDUCT OR GROSS NEGLIGENCE, EACH PARTY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL NEVER EXCEED THE TOTAL AMOUNT PAID BY MEMBER TO VIZER UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY BEFORE ANY EVENT GIVING RISE TO A CLAIM BY THE OTHER PARTY HEREUNDER. EACH PARTY HEREBY RELEASES THE OTHER PARTY FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS IN EXCESS OF THIS LIMITATION.
8.3. Essential Basis. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties, and, absent any of such disclaimers, exclusions or limitations of liability, the provisions of this Agreement, including, without limitation, the economic terms, would be substantially different.
9. INDEMNIFICATION
9.1. Vizer Indemnity.
9.1.1. Vizer shall indemnify, defend and hold harmless Member from and against all losses, liabilities, damages, claims, costs and reasonable expenses (including reasonable attorneys’ fees) arising out of or related to a third party claim that Member’s use of, or access to, the Vizer Platform or Technology infringes a United States copyright or trademark or misappropriates any third party trade secrets (an “Infringement Claim”); provided that, Member must give Vizer: (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Vizer may reasonably request, at Vizer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Vizer shall not, without the prior written consent of Member, settle any third-party claim against Member unless (i) such settlement completely and forever releases Member with respect thereto or (ii) does not involve any financial obligation on the part of Member. In any action for which Vizer provides defense on behalf of Member, Member may participate in such defense at its own expense by counsel of its choice.
9.1.2. Upon the occurrence of any Infringement Claim for which indemnity is or may be due under this Section 9.1, or in the event that Vizer believes that such a claim is likely, Vizer will, at its option: (a) appropriately modify the Program Services, Vizer Platform or Technology to be non-infringing, or substitute a functionally equivalent Platform or services; (b) obtain a license to the applicable third-party intellectual property rights; or (c) if the remedies set forth in clauses (a) and (b) above are not commercially feasible, as determined by Vizer in its sole discretion, Vizer may terminate this Agreement on written notice to Member and refund any pre-paid fees for services that have not been provided. THE PROVISIONS OF THIS SECTION 9.1 STATES THE SOLE, EXCLUSIVE, AND ENTIRE LIABILITY OF VIZER TO MEMBER, AND IS MEMBER'S SOLE REMEDY, WITH RESPECT TO ANY INFRINGEMENT CLAIM.
9.2. Member Indemnity. Member agrees to hold harmless, indemnify, and, at Vizer’s option, defend Vizer from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages arising out of resulting from Member Data or Member Trademarks.
9.3. Mutual Indemnity. Each Party (“Indemnifying Party”) shall indemnify, defend and hold harmless the other Party and its officers, directors, shareholders, members, managers, employees, agents and Affiliates (each, an “Indemnified Party”) against any claim, including costs and reasonable attorney’s fees, in which the Indemnified Party is named as a result of the grossly negligent or intentional acts or omissions of the Indemnifying Party, its employees or agents, while performing its obligations pursuant to this Agreement or any SOW, which result in death, personal injury or property damage.
9.4. Indemnity Procedure. The Indemnified Party must give the Indemnifying Party: (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as the Indemnifying Party may reasonably request, at the Indemnifying Party’s expense, in connection with such defense and/ or settlement. Notwithstanding the foregoing, the Indemnifying Party shall not, without the prior written consent of the Indemnified Party, settle any third-party claim against the Indemnified Party unless (i) such settlement completely and forever releases the Indemnified Party with respect thereto or (ii) does not involve any financial obligation on the part of the Indemnified Party. In any action for which the Indemnifying Party provides defense on behalf of the Indemnified Party, the Indemnified Party may participate in such defense at its own expense by counsel of its choice.
10. TERM AND TERMINATION
10.1. Agreement. This Agreement shall become effective upon the Effective Date hereof, and shall continue in effect until it is earlier terminated in accordance with this Section 10.
10.2. Term of Purchased Memberships. Each Membership Term shall be as specified in the applicable Order Form. Unless otherwise specified in the applicable Order Form, Memberships to Program Services will automatically renew for additional periods equal to the expiring Membership Term, unless either Party gives the other Party written notice of non-renewal at least thirty (30) days before the end of the expiring Membership Term. The pricing for any automatic renewal term will be the same as that during the immediately prior Membership Term unless Vizer has given Member written notice of a price increase at least thirty (30) days before the end of the expiring Membership Term in which case the price increase will be effective upon renewal.
10.3. Term of Statements of Work. Unless otherwise stated in the applicable SOW, the term of each SOW shall last until performance thereunder is completed.
10.4. Termination on Expiration of Membership Terms and SOWs. Upon expiration or termination of any and all Membership Terms and SOWs executed under this Agreement, either Party may terminate this Agreement by giving not less than thirty (30) days written notice to the other Party.
10.5. Termination for Breach. Either Party may terminate this Agreement, or any Order Form or SOW executed under this Agreement, in the event of a material breach by the other Party. Such termination may be effected only through a written notice to the breaching Party; specifically identifying the breach on which such notice of termination is based. The breaching Party will have a right to cure such breach within sixty (60) calendar days of receipt of such notice (ten (10) calendar days in the case of non-payment). The non-breaching Party may terminate this Agreement, or any Order Form or SOW executed under this Agreement, in the event that such cure is not made within such sixty (60)-day period (or ten (10)-day period in the case of non-payment).
10.6. Bankruptcy. This Agreement, or any Order Form or SOW executed under this Agreement, may be terminated immediately by a Party through written notice if the other Party ceases to carry on business as a going concern, becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets.
10.7. Termination of Individual Order Forms or SOWs. In the event a Party terminates any individual Order Form or SOW in accordance with this Agreement, this Agreement (including any other Order Forms or SOWs) shall remain in full force and effect in accordance with its terms.
10.8. Accrued Obligations. Termination of this Agreement and/or any particular Order Form or SOW shall not release either Party from any liability which, at the time of termination, has already accrued or which thereafter may accrue with respect to any act or omission before termination, or from any obligation which is expressly stated in this Agreement and/or any applicable Order Form or SOW to survive termination.
10.9. Cumulative Remedies. Termination of this Agreement and/or any applicable Order Form or SOW, regardless of cause or nature, shall be without prejudice to any other rights or remedies of the Parties and shall be without liability for any loss or damage occasioned thereby.
10.10. Effect of Termination. Upon any termination of this Agreement, Member shall immediately discontinue all use of the Program Services and promptly pay to Vizer all amounts due and payable under this Agreement. In addition, each Party shall: (a) immediately discontinue all use of the other Party’s Confidential Information; (b) at the option of the disclosing Party, either return or destroy all Confidential Information of the disclosing Party in its possession; and (c) delete the disclosing Party’s Confidential Information from its computer storage or any other media, except for archival copies which may be retained and shall be destroyed in accordance with the Party’s Record retention policy. Any such retained copies shall remain subject to Section 5 (Confidential Information). Each Party will, on request from the disclosing Party, provide the disclosing Party with a written certification of compliance with this Section 10.10 signed by an officer.
10.11. Survival of Obligations. The provisions of Sections 2.3, 5, 6, 7.5, 8, 9, 10.8 thru 10.11, 11 and 12, as well as Member’s obligations to pay any amounts due and outstanding hereunder, shall survive termination or expiration of this Agreement.
11. GENERAL
11.1. Applicable Law; Venue and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to its rules regarding conflicts of laws. THE PARTIES AGREE THAT ANY AND ALL CAUSES OF ACTION BETWEEN THE PARTIES ARISING FROM OR IN RELATION TO THIS AGREEMENT SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED WITHIN THE STATE OF CALIFORNIA.
11.2. Order of Precedence. In the event of a conflict between this Agreement and any Order Form, SOW or other document referencing this Agreement that is executed by both Parties, this Agreement shall govern, except to the extent that the applicable Order Form, SOW or other executed document expressly states the intent of the Parties to supersede or change one or more provisions in this Agreement and clearly identifies the provision(s) to be superseded or changed. This Agreement, including each Order Form or SOW, shall prevail over any different, conflicting, inconsistent or additional terms contained in any purchase order or like document issued by Member.
11.3. Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person; or (b) sent by email, return receipt requested. All such notices shall be sent to each Party at its address specified on the signature page of this Agreement, or addressed to such other address as that Party may have given by written notice in accordance with this provision.
11.4. Assignment. Neither Party shall assign its rights or delegate its obligations under this Agreement without the other Party’s prior written consent, and, absent such consent, any purported assignment or delegation shall be null, void and of no effect. Notwithstanding the foregoing, either Party may assign this Agreement, without requiring such prior consent, in connection with a merger or sale of all or substantially all of its assets, provided that the assignee agrees in writing to assume the assignor’s obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit of Vizer and Member and their successors and permitted assigns.
11.5. Miscellaneous. The Parties are acting as independent contractors in making and performing this Agreement. The relationship arising from this Agreement does not constitute or create any partnership, joint venture, employment relationship or franchise between the Parties. No amendment to this Agreement or any Order Form or SOW shall be valid unless it is made in writing and is signed by the authorized representatives of both Parties. No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any delay or forbearance by either Party in exercising any right hereunder shall not be deemed a waiver of that right. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. This Agreement (together with all Order Forms and SOWs) sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof. Each Party agrees that during the term of this Agreement, it shall not offer employment or engagement (whether as an employee, independent contractor or consultant) to any employee or consultant of the other Party without the prior written consent of the other Party.
12. DEFINITIONS
“Account Manager” means a Vizer representative who will be the Member’s account manager for purposes of assisting with the facilitation of an Order Form or Statement of Work.
“Affiliate” means any entity that 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.
“Authorized Users” means individuals who are authorized by Member to use the Program Services under the umbrella membership purchased by Member. Authorized Users may include but are not limited to Member’s employees, consultants, or agents.
“Confidential Information” means any material, data or information relating to a Party’s software, inventions, processes, formulas, technologies, designs, drawings, research, development, products, product plans, services, customers, customer lists, member lists, member contact information, Member programs, resource information, markets, marketing plans, financial statements, or other business information, trade secrets or intellectual property that such disclosing Party treats as proprietary or confidential, and is marked as “confidential” or “proprietary” or that, given the circumstances, should be reasonably apparent that such information is of a confidential or proprietary nature. Without limiting the foregoing, (i) the Vizer Platform and all IP Rights associated therewith shall constitute Confidential Information of Vizer, (ii) Member Data shall constitute Confidential Information of Member; and (iii) all software and any databases (including any data models, structures, non-Member specific data and Member specific data and aggregated statistical data contained therein) disclosed by a Party shall constitute Confidential Information of the disclosing Party.
“Documentation” means the technical documentation provided by Vizer to Member in connection with the Program Services, expressed in any medium or format.
“Effective Date” means, for this Agreement the date specified in the first paragraph, and for any Order Form or Statement of Work or other document executed in connection with this Agreement, the date that the individual document has been executed by both Parties (which is the latter date if executed by the Parties on different dates).
“IP Rights” means any and all intellectual property rights of any type, recognized in any country or jurisdiction throughout the world, now or hereafter existing, and whether or not perfected, filed or recorded, including without limitation, all: (i) inventions, including patents, patent applications and statutory invention registrations or certificates of invention, and any divisions, continuations, renewals or re-issuances of any of the foregoing; (ii) trademarks, service marks, domain names, trade dress, logos, and other brand source distinctions; (iii) copyrights and works of authorship, or (iv) trade secrets and know-how.
“Member” has the meaning set forth the first paragraph of this Agreement and includes the subsidiaries, chapters and non-independent Affiliates. For the avoidance of doubt, Member Data is not data that is obtained from the individuals in the Vizer ecosystem and others who access Vizer’s Velocity Offers on the Vizer Platform via placement by Vizer or Member. Such individuals include, but are not limited to audiences of Vizer, Member, or others who may receive access to the Vizer Platform via online distribution or otherwise. Such individuals are subject to the Vizer Terms of Use listed on joinvizer.com.
“Member Data” means any data, regardless of whether in printed or electronic form, that is (i) provided to Vizer by Member in order for Vizer to perform its obligations under this Agreement, (ii) provided to Vizer by Authorized Users, or (iii) derived from Member’s use of the Program Services.
“Membership Term” means the period of time from the start date to the end date specified in each Order Form for each Membership purchased thereunder. Each renewal of a Membership, whether automatic or in writing, shall constitute a new Membership Term.
“Order Form(s)” means one or more ordering documents for purchases of Program Services that are executed by Member and Vizer from time to time under this Agreement. By entering into an Order Form hereunder, an Affiliate of Member agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms are incorporated herein by reference.
“Platform” means collectively, Vizer’s proprietary Website(s) (including https://www.joinvizer.com/), that are configured, managed and hosted by Vizer, and made available to Member and Users to access and use the Program Services.
“Professional Services” means, in each instance, the implementation, integration, configuration, training, consulting or other professional services provided by Vizer pursuant to a SOW under this Agreement.
“Promotional Funding Account” means a balance that a Member holds with Vizer that is paid out to a retailer for the redemption cost of a discounted item in a Member Offer. The Promotional Funding Account balance equals a percentage, as determined by Vizer, of the total redeemable cost of a Member Offer, as set forth in an applicable Order Form or SOW.
“Statement of Work” or "SOW” means one or more ordering documents for purchases of Professional Services that are executed by Member and Vizer from time to time under this Agreement. Each SOW shall contain, at a minimum, the following information: (i) the scope of the Professional Services to be provided; (ii) applicable rates and fees; (iii) responsibilities and dependencies of each Party; (iv) agreed upon Work Product and specific deliverables, if any; and (v) signatures of authorized representative of both Parties. By entering into an SOW hereunder, an Affiliate of Member agrees to be bound by the terms of this Agreement as if it were an original party hereto. SOWs are incorporated herein by reference.
“Technology” means all software, designs, formulas, algorithms, processes, and programs that are owned by Vizer or its licensors and that are used to provide the Program Services and the Platform.
“Third-Party Applications” means software products that are provided by third parties but may be configured to interoperate with the Program Services, Technology and Platform.
“Trademarks” means any one or more of the trademarks, service marks, trade names, domain names, logos, business and product names, slogans, and registrations and applications for registration thereof owned and/or in use by a Party as of the Effective Date, or which are acquired and/or used by such Party thereafter.
“Work Product” means any expression of Vizer’s findings, developments, inventions, analyses, conclusions, opinions, recommendations, ideas, techniques, designs, programs, enhancements, modifications, interfaces, source code, object code and other technical information resulting from the performance of Professional Services, support services, or any other services performed for the benefit of Member.