Marketplace Partner Agreement
Effective starting: January 24, 2020
This viso.ai Marketplace Partner Agreement (this “Agreement”) forms a legally binding agreement between viso.ai AG (“viso.ai”, “we” or “us”) and the individual or entity registering as a vendor or partner in the viso.ai Marketplace (“Marketplace Partner” or “you”). If you are an individual registering for the viso.ai Marketplace on behalf of your company, government, or other entity (for example, as an employee or governmental official), then “you” means your entity and you are binding your entity to this Agreement. Under this Agreement, you appoint and authorize viso.ai, as your commercial agent, to promote, sell, test and distribute Marketplace Apps (as defined below) on the terms and conditions of this Agreement, and viso.ai accepts such appointment. Before clicking to agree to this Agreement, please carefully read the terms and conditions below. Viso.ai may modify this Agreement from time to time, subject to the terms in Section 18 (Agreement Changes) below. The viso.ai Marketplace is not intended for and may not be used by anyone under the age of 16.
This Agreement does not have to be signed in order to be binding. You indicate your assent to the terms of this Agreement by (i) checking the box (or similar action) to accept the Agreement that is presented to you at the time you sign up to list your products on the viso.ai Marketplace or (ii) by submitting any Marketplace App to the viso.ai Marketplace.
1. Introduction to the viso.ai Marketplace
The viso.ai Marketplace is a forum for connecting partners who make Apps for viso.ai products with potential end users. As a partner, you may charge a fee for your Apps. You may also offer your Apps free of charge under certain circumstances. End users order your Apps through viso.ai’s ordering and license management.
2. Key Definitions
2.1. “viso.ai Developer Assets” has the meaning given in the viso.ai Developer Terms.
2.2. “viso.ai Marketplace” or “Marketplace” means https://marketplace.viso.ai or any other webpage, application, interface, service or in-product experience at which viso.ai makes available or lists Apps and any other location that allows for the discovery, download or purchase or Apps.
2.3. “Marketplace Apps” or “Apps” means cloud and downloadable applications, plug-ins or extensions that are designed to interoperate with viso.ai’s own software and cloud offerings and that you deliver to viso.ai or make available through the Marketplace. “Apps” also include any New Versions of existing Apps.
2.4. “Marketplace Guidelines” means the terms, rules and policies that viso.ai makes available at viso.ai web properties describing the Marketplace, which set forth certain requirements (as may be modified by viso.ai from time to time) for including your Marketplace Apps in the viso.ai Marketplace.
2.5. “New Versions” means any enhancements, upgrades, updates, bug fixes, patches, new versions and other modifications and amendments to your Apps.
2.6. “Partner Portal” means the online platform made accessible to Marketplace Partner by viso.ai on which viso.ai from time to time will communicate program details and changes, and provide sales tools and services, to Marketplace Partners.
2.7. “Revenue Share” means the revenue based on the Marketplace Partner’s Sale as displayed at the applicable Revenue Share page on the Partner Portal at the time of the Sale in accordance with Section 4.2 (Revenue Share) below.
2.8. “Similar Service” means, in relation to paid-via-viso.ai Apps, any online distribution service or channel (other than the viso.ai Marketplace) that makes such Apps available for sale, use or download to end users and/or channel partners, including any website or other distribution method operated by you.
3. Using the Marketplace to Publish Your Apps
3.1. Types of Apps. Currently, the viso.ai Marketplace allows you to offer the following types of listings for Marketplace Apps. You designate your listing type using your vendor account on the viso.ai Marketplace (subject to approval by viso.ai), based on the options (1) Modules or (2) Applications. Modules describe software building blocks which can be used to build Applications. Applications describe the combination of multiple modules by linking them together in the Viso Builder and may include dashboards and video files. Free Apps refer to Modules or Applications that you provide free of charge through the viso.ai Marketplace.
4. Financial Terms
4.1. List Price. Subject to the remainder of this Section 4 and the other terms of this Agreement, you have discretion to set the commercial pricing tiers for initial sales, licenses or subscriptions to your Apps (the “List Prices”). Viso.ai will determine the pricing for renewals, upgrades that add more licenses/users, New Versions and other support and maintenance, and academic and community licenses acquired through the viso.ai Marketplace (“Follow-on Sales”), all in accordance with its standard formulas and policies. You agree that any List Price may not exceed, at any time, the lowest list price or suggested retail price for each applicable pricing tier for your App (including any similar edition, version or release) available on any Similar Service or the lowest actual price at which you make such App available for sale through any Similar Service. You will update the List Price for each App as necessary to ensure that it meets the requirements of this Section 4.1.
4.2. Revenue Share. Subject to this Agreement, for each Sale, except as otherwise expressly agreed by viso.ai in writing, viso.ai will pay you the applicable Revenue Share for the Sale. “Sale” includes any initial or renewal sale, subscription or license of a Paid-via-viso.ai App (or related content or services) through the viso.ai Marketplace, including any Follow- on Sales. Such amounts exclude taxes and any separately stated fees or charges. A Revenue Share is due only for Sales for which viso.ai has received final payment from or on behalf of an end user. If an App is sold to an end user using a credit card, final payment will be deemed to have occurred when the applicable credit card company or bank has fully settled the payment for the applicable purchase. The current Revenue Share pages are available at marketplace.viso.ai and may be amended from time to time by viso.ai. Any changes or updates to the Revenue Share will be effective 30 days after notice.
4.3. Currency Conversion. Unless otherwise specified in the Marketplace Guidelines, you will designate your List Price in United States Dollars (USD) and viso.ai will make all Revenue Share payments to you in USD. In certain non-United States countries, viso.ai may, in its discretion, list your Apps and make Sales to end users in currencies other than USD. In this case, your USD denominated Revenue Share payment may fluctuate, and viso.ai will make the applicable currency conversions and communications to you.
4.4. Payment by viso.ai. Subject to the terms of this Agreement (including the remainder of this Section 4), approximately thirty (30) days after the end of the calendar month in which the applicable Sale is made, viso.ai will pay you the Revenue Share due to you and provide you with a report that gives further information about your Sales. You agree to provide viso.ai with information on a valid bank account in your name, and viso.ai will make payments to that account. Viso.ai is entitled to accrue and withhold payments, without interest, until the total amount due to you (net of any tax withholding, as further described below) is at least US$500.00 (or equivalent). You agree that any fees charged by your bank in connection with wire transfers pursuant to this Section 4.4 are solely your responsibility.
4.5. Refunds; Withholding of Revenue Share. Viso.ai may issue refunds of the applicable Sale amount (or portions thereof) to end users or viso.ai Partners in its sole discretion. If viso.ai issues a refund prior to paying you the Revenue Share for the applicable Sale, then you agree and acknowledge that you will not receive and will have no right to receive a Revenue Share on that portion of the Sale amount that was refunded. In addition, if viso.ai pays you a Revenue Share on a Sale and later issues a refund or credit to the end user for such Sale (or receives a chargeback related to the Sale), viso.ai may offset the amount of the Revenue Share that viso.ai previously paid you against future Revenue Share or other amounts that would otherwise be payable to you under this Agreement, or require you to remit that amount to viso.ai. Viso.ai may also withhold and offset sums you owe to viso.ai against amounts that are payable to you. When this Agreement terminates, viso.ai may withhold all Revenue Share due for a period of sixty (60) days from the date they would otherwise be payable, in order to ensure viso.ai’s ability to offset any end user refunds or make any other offsets to which viso.ai is entitled.
4.6. Use of Certain Information. Viso.ai shall only use your banking and payment information for purposes related to this Section 4 (Financial Terms). Viso.ai shall not disclose your sales and related financial data to third parties except agents and contractors acting on viso.ai’s behalf and except as required by Laws. The foregoing sentence notwithstanding, viso.ai may use or disclose aggregated sales and other financial data related to the viso.ai Marketplace, which may include your sales and related financial data but does not identify you or your data specifically.
4.7. Taxes. Except as described in this Agreement, viso.ai is responsible for collecting and remitting any taxes imposed on sales of your Apps to end users. You are responsible for any income or other taxes due and payable resulting from viso.ai’s payments to you. Accordingly, unless otherwise stated, the amounts due to you hereunder are exclusive of any taxes that may apply to such payments. Viso.ai maintains the right to deduct or withhold any applicable taxes payable by you from amounts due from viso.ai, and the amounts due, as reduced by such deductions or withholdings, will constitute full payment to you.
5. Your Content; License to Viso.ai; End User Licensing
5.1. Delivery of Your Content. You will deliver Marketplace Apps to viso.ai on or prior to the initial availability date you designate for the Marketplace App (the “Initial Availability Date”). Together with delivery of each Marketplace App, you will also provide the following information and materials: (a) Marketplace App title, Initial Availability Date, category, Marketplace Partner name, List Prices (if applicable), product description, icon, logo or banner images, and any other information related to the Marketplace Apps that viso.ai requires; (b) the metadata, graphics, artwork, images, trademarks, trade names, logos and other descriptive or identifying information and materials associated with you or a particular Marketplace App that you wish to appear in connection with your App; and (c) your Marketplace Partner Terms (defined in Section 5.6) ((a)-(c), collectively, “Product Information”). Together, the Marketplace Apps and Product Information are “Content”.
5.2. Accuracy. You are responsible for providing accurate Product Information. If any Product Information is inaccurate or needs to be updated or modified, you will promptly provide viso.ai with corrections, updates, or modifications.
5.3. Compliance. You will ensure that all Content complies with this Agreement, including viso.ai’s Marketplace Guidelines (which are hereby incorporated into this Agreement). However, this Agreement will control in the event of any direct conflict with the Marketplace Guidelines or any additional policies included or referenced in the Marketplace Guidelines. In your activities under this Agreement, you also agree to comply with the viso.ai Acceptable Use Policy (as may be modified from time to time by Viso.ai) (the “AUP”).
5.4. License Grant to viso.ai. You hereby grant viso.ai, during the Term (and thereafter in accordance with Section 11 (Term and Termination)), the nonexclusive, royalty-free (subject to payment of any applicable Revenue Share), worldwide right and license:
(a) to resell, distribute or make available (including via download), as applicable, the Marketplace Apps through the viso.ai Marketplace to end users (either directly or, unless you opt out, through viso.ai Partners) by all means of electronic distribution available now or in the future, except that this subsection (a) shall not apply to (i) Paid-via-Vendor Apps that you choose to make available for download directly from your website instead of from viso.ai or (ii) Free Apps available for download only from your own website;
(b) to use, reproduce, distribute, reformat, create excerpts from, promote, advertise, transmit, and publicly display and perform the Product Information (and any such excerpts) in any and all digital and other formats for promotional purposes in connection with (i) the viso.ai Marketplace and (ii) listings for your Apps;
(c) otherwise to use, store, copy and distribute your Content (i) for testing and evaluation (including scanning for Viruses, as defined in Section 12.6) conducted by viso.ai and its third party vendors; (ii) for purposes of exercising viso.ai’s rights and fulfilling viso.ai’s obligations hereunder; and (iii) for purposes of enforcing this Agreement and the Marketplace Guidelines;
(d) to use your Apps for viso.ai’s own business purposes internally, within the scope for which the App’s use is reasonably intended (“Internal Use License”). The Internal Use License applies to both Module and Application listings, but only applies to Software Apps in object code form (which viso.ai agrees not to decompile or reverse engineer). Marketplace Partners may opt out of the Internal Use License by giving viso.ai notice thereof to firstname.lastname@example.org.
5.5. License Clarifications. The licenses granted to viso.ai in Section 5.4: (i) include rights to distribute, promote and make available New Versions to eligible end users, (ii) include the right, as described in Section 11 (Term and Termination), to continue to retain and make available Apps and Product Information to existing end users after the Term, and (iii) are granted under all applicable intellectual property rights (including patent rights).
5.7. Partner Portal. During the Term, Marketplace Partner may use the Partner Portal to access Marketplace Guidelines, viso.ai Marks, marketing tools and services, and other Marketplace resources. Marketplace Partner may use such resources solely to exercise its rights and fulfill its obligations under this Agreement. To access the Partner Portal, Marketplace Partner may be required to activate or validate its status as a Marketplace Partner, as further specified on the Partner Portal landing page.
6. Delivery Commitments and Responsibilities related to End Users
6.1. Delivery Commitment. You will deliver electronically to viso.ai (and continue to make available during the Term) all versions of Apps for which you have the rights required under this Agreement. You will deliver any New Versions to the Marketplace Apps, together with any related Product Information, as soon as they are available. You must deliver to viso.ai all of the same versions and editions of such App (including New Versions) that you or your affiliates make available directly or indirectly through any Similar Service, by no later than the first date you permit the corresponding version or edition to be listed for sale on any Similar Service.
6.2. Cloud Apps. For Cloud Apps, subject to Section 11.3 (Effect of Termination; Transition) you must also deliver all Product Information to viso.ai and make the Cloud App (including any New Versions) available to viso.ai and Marketplace users on a hosted basis at least until the conclusion of any paid terms or subscriptions of all customers who have purchased such Apps. For clarity, neither this Section 6.2 nor Section 6.1 changes Section 5.1(a) (Exception for Cloud Apps).
6.3. End User Support. You will use commercially reasonable efforts to provide telephone, web-based and/or email support to the end users for your Marketplace Apps during normal business hours (except in the case of Free Apps, where you must provide the support you promise to users). You will provide to viso.ai a current email address to which viso.ai may direct inquiries from users regarding your Marketplace Apps. You are solely responsible for providing all support for your Marketplace Apps, and for providing to users of your Marketplace Apps all information necessary for their use of your Marketplace Apps. At a minimum you agree to respond within 24 hours to any support request that viso.ai identifies as critical, and in all other cases within five business days of request from an end user or viso.ai.
6.4. Migration of Marketplace Partner End Users into viso.ai Marketplace. You may contact viso.ai at email@example.com in the event you desires to migrate your existing end users into the viso.ai Marketplace to manage future license management and renewals. If authorized by Viso.ai, you will be provided access to Viso.ai’s migration API (“Migration API”) pursuant to which you will enter the license information and details necessary for you to utilize the viso.ai Marketplace licensing mechanism for applicable end user. In connection with your use of the Migration API, you agree to only request license keys for your existing end users that began their respective license or maintenance period more than thirty-one (31) days prior to the date such license key is requested.
7. Reservations of Rights
As between you and us, you retain all right, title and interest in and to Content that you deliver to us, excluding any viso.ai Developer Assets or other viso.ai technology or materials used or included in the Content. Subject to your foregoing rights in the Content, viso.ai retains all right, title and interest in and to the viso.ai Marketplace, viso.ai Developer Assets, all viso.ai products, and all technology, content, information, services, trademarks and other intellectual property used in connection with the foregoing.
8. Additional viso.ai Marketplace Terms
8.1. Prohibited Actions; Responsibilities. You may not reverse engineer, disassemble or decompile any viso.ai code or technology used in connection with the viso.ai Marketplace, including any viso.ai Developer Assets. You will not take any action that interferes with, damages, or accesses or uses in any unauthorized manner the hardware, software, networks, technologies or other properties or services of viso.ai or of any end user or other third party. You agree not to make any representations, guarantees or warranties (1) that violate any laws or regulations, including any false advertising or consumer protection laws, (2) with respect to viso.ai, the viso.ai Marketplace, or viso.ai’s product or services, or (3) by viso.ai or on behalf of viso.ai. You may not sell any data provided by viso.ai or collected from end users in connection with providing your App. In addition, you may not license, share or transfer any such data to a third party unless it is necessary solely for providing the functionality of your App and, in such case, only in accordance with (i) applicable Laws and (ii) any representations, statements and agreements you have made to your end users. In all activities under this Agreement, you agree to conduct yourself in a professional manner and not to disparage or devalue viso.ai or the Marketplace.
8.2. Review of Marketplace Apps by You. The viso.ai Marketplace allows you to post reviews of Marketplace Apps offered by other vendors. Any review by you of a Marketplace App shall be made in good faith after reasonable evaluation of the full Marketplace App. You (including your employees and others acting on your behalf) may not review or comment on your own App or those of competitors. As an exception, you may provide informational responses to support requests or other inquiries directed to you within the reviews or comments section of your App. All reviews must comply with viso.ai’s AUP, and viso.ai (in its discretion) may take down reviews or block reviewers in event of a violation of the AUP.
8.3. Viso.ai Marketplace Operations. Viso.ai maintains sole discretion to determine all features and operations of the viso.ai Marketplace. You acknowledge that viso.ai has no obligation to promote, distribute, list or offer for Sale any Marketplace App, or to continue to do so. With respect to Paid-via-viso.ai Apps only, viso.ai is responsible for and has sole discretion related to processing payments, collecting payments, addressing requests for refunds, and providing customer service related to its obligations, and, for clarity, all Sales through the viso.ai Marketplace will be processed by viso.ai’s payment systems and will be subject to the Revenue Share terms above. Viso.ai will have sole ownership and control of all Sales and other data viso.ai obtains from end users in connection with the viso.ai Marketplace, but will make available certain End User Data (as defined below) to you, subject to Section 8.4.
8.4. End User Data and Privacy‐Related Obligations.
(a) Data Collection. In addition to sales and usage data related to your Paid-via-viso.ai Apps, viso.ai may provide you with access to data or information (including personal data) associated with your (i) Paid-via-viso.ai Apps, (ii) Paid-via-Vendor Apps and (iii) Free Apps collected through the viso.ai Marketplace, including end user name, company name (if any), physical or email addresses, and phone numbers. Based on the activities under this Agreement, subject to the provisions of this Section 8.4, you may also collect other information or data from those end users who have installed your App, which may include personal data, but only as necessary for purposes of providing and improving the functionality and user experience of your App. Any data or information provided or collected pursuant to this subsection (a) is collectively “End User Data”.
(c) End User Communication. You may use End User Data to communicate directly with end users, provided that such communication is: (i) with technical and billing contacts, (ii) required under applicable law, or (iii) consented to or requested by the end user. In all cases, you will ensure that any communication with end users is conducted in accordance with all applicable laws (including obtaining all required end user consents). Notwithstanding the foregoing, you shall not send marketing messages to end users within any product experience integrated with viso.ai products without the explicit written consent of viso.ai.
(e) Security. You shall maintain and handle all End User Data in accordance with: (i) privacy and security measures adequate to preserve its confidentiality and security and (ii) all applicable Laws. You agree to implement appropriate technical and organizational measures (1) to ensure a level of security appropriate for the processing operations you undertake, and (2) that are, in any case, no less than measures consistent with industry standard practices. In addition, you shall follow the Security Requirements that viso.ai has made available to Marketplace Partners.
(f) Security and Privacy Review. Viso.ai, or an authorized third-party selected by us, may conduct a security or privacy review of any App to ensure compliance with (i) your obligations under Section 8.4 or (ii) security and privacy related sections of the Marketplace Guidelines. Security and privacy reviews may include, without limitation: information requests to you, reviews of your documentation, interviews, security testing, technical testing and reviews, code reviews and scans (which may reverse engineer binary code), event logging, network testing, and vulnerability threat assessments. In addition, viso.ai reserves the right to request that you provide the source code for your App, but solely for the purpose of viso.ai conducting security and/or privacy tests. You agree to reasonably and promptly cooperate with such requests and reviews of your App(s) and/or your App’s supporting infrastructure (in the case of Cloud Apps). Viso.ai also manages bug bounty programs using third party service providers from time to time, and if you elect to participate in the bug bounty programs, you give viso.ai the right to submit your Marketplace Apps to bug bounty programs.
(g) Incident Notification. In the event of any Incident, you are solely responsible, at your own expense, for investigation and remediation of the Incident and for your own data breach notifications to affected end users and, where applicable, regulatory authorities, in accordance with applicable Laws and industry standards. Upon any discovery or notice of an Incident, subject to any applicable (i) Laws and (ii) Marketplace Partner Terms, you will promptly (but in any event, no later than within 24 hours) notify viso.ai via an firstname.lastname@example.org. At viso.ai’s request, you will provide viso.ai with further information and prompt assistance related to the Incident, including information regarding how it may affect viso.ai products or the viso.ai Marketplace. In addition, you will comply with any Incident guidelines or procedures that viso.ai publishes in the Marketplace Guidelines (as may be updated from time to time). You will ensure that you have an updated contact name and contact information in your Marketplace Partner Portal for Incidents. Without limiting any other reserved rights of termination or suspension, viso.ai may de-list your App from the viso.ai Marketplace or suspend use of or access of your App to viso.ai products as a result of any Incident.
“Incident” means any actual or suspected (i) unauthorized access, acquisition, use, disclosure, modification, loss or destruction of End User Data in the possession or control of Marketplace Partner or its agents or contractors (whether intentional or accidental), (ii) security vulnerability or compromise of a Marketplace Partner’s App, or (iii) in the case of a Cloud App, an issue that materially degrades viso.ai systems or networks.
8.5. Export Controls and Economic Sanctions. You acknowledge that you develop and offer Apps through vis.ai via its Marketplace, and therefore you agree to ensure compliance with all export controls and economic sanctions laws and regulations. You also acknowledge that viso.ai and others may lawfully rely on your determination of your Marketplace App’s export control status. Thus, you hereby represent, warrant, and certify that: (1) your Marketplace Apps are authorized for export from the United States to each country to which you permit them to be distributed or made available through the viso.ai Marketplace, in accordance with the requirements of the United States Export Administration Regulations, 15 C.F.R. Parts 730-774; and (2) either (i) the Marketplace Apps do not contain, use or support any data encryption or cryptographic functions (“Encryption Technology”) or (ii) you have qualified each Marketplace App containing, using or supporting Encryption Technology for export as a “mass market encryption item” in accordance with 15 C.F.R Part 742.15(b)(2) and will, upon request, provide viso.ai with a copy of the applicable Encryption Registration Number or mass market export classification ruling (CCATS) issued by the United States Commerce Department, Bureau of Industry and Security. You further agree to comply with any and all ongoing export-control and reporting obligations, if applicable, related to any of your Marketplace Apps. You agree to indemnify viso.ai of any claim brought against viso.ai for violation of any export-controls or economic sanctions law or regulation related to your Marketplace Apps. You further agree to notify viso.ai of any non-U.S. export control laws or regulations relevant to your Marketplace Apps, and you represent, warrant, and certify to viso.ai that you will comply with all applicable export control and economic sanctions laws and regulations.
8.6. Feedback. “Feedback” means any feedback, comments, suggestions, ideas, description of processes or other information that you may provide to viso.ai from time to time about or in connection with viso.ai Marketplace, including any ideas, concepts, know-how or techniques contained therein. You hereby grant viso.ai a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, including incorporating or implementing the Feedback in the viso.ai Marketplace or any viso.ai products, applications or services. You agree that viso.ai may exploit all Feedback without any restriction or obligation on account of intellectual property rights or otherwise.
8.7. Aggregated Information. In addition to viso.ai’s other rights, viso.ai may collect aggregated information regarding the viso.ai Marketplace and Marketplace Apps (excluding any personally identifiable information). We will not provide information to any third party about Marketplace Apps, or customers purchasing Marketplace Apps, except as necessary for us to perform our obligations under this Agreement, or otherwise provide the products or services to our customers under the applicable Cloud Terms of Service.
8.8. App Programs. Viso.ai offers certain programs under which (i) Marketplace Partners may self-certify or (ii) viso.ai may approve that Marketplace Partners, or their Apps, meet certain standards for end user adoption, support, security and/or other criteria (“App Programs”). We encourage you to read more about them and the qualifying standards for viso.ai App Programs.
(a) To participate in an App Program, you must complete an application, provide any additional information requested by viso.ai and/or follow the instructions given in the Marketplace Guidelines. You represent and warrant that all information you provide to viso.ai will be accurate and complete. Viso.ai may disclose such information to end users and other third parties in connection with administering the App Programs and the Marketplace.
(b) Viso.ai may decide in its sole discretion whether to approve a Marketplace Partner for an App Program. If a Marketplace Partner is approved, viso.ai may authorize the Marketplace Partner to use the related badge or other related marketing assets. Participation in any App Program, including use of badges and marketing assets, is subject to the policies specified by viso.ai from time to time. You understand that viso.ai may flag, revoke or downgrade any Marketplace Partner certification, approval or badge at any time based on end user complaints, Marketplace Partner’s failure to meet App Program standards, Marketplace Partner’s failure to comply with viso.ai policies or the Marketplace Guidelines, or if viso.ai otherwise determines such actions are in viso.ai’s best interests. Further, viso.ai may rebrand, modify or discontinue any App Program, badges or related marketing assets at any time.
(c) App Programs are designed to assist Marketplace Partners in communicating certain standards and business practices to end users of Apps, and viso.ai administers the App Programs only as a convenience for Marketplace Partners and end users. Marketplace Partner remains solely responsible for its Apps and their quality, sufficiency, security and support, notwithstanding viso.ai’s approval, if granted, for a Marketplace Partner to participate in an App Program or use any badge. Without limiting its obligations in Section 8.1 or elsewhere in this Agreement, in no event will you state or imply that viso.ai endorses, sponsors or guarantees your Apps.
9. Viso.ai Control of Marketplace
Viso.ai may determine in its sole discretion to make available or list any Marketplace App through the viso.ai Marketplace, or to remove any App from the viso.ai Marketplace. Viso.ai may stop any transaction, or take other actions as needed to restrict access to or availability of any Content that does not comply with this Agreement or that otherwise might adversely affect end users. Inclusion of a Marketplace App in the viso.ai Marketplace does not relieve you of responsibility to ensure the Marketplace App complies with this Agreement or to perform other obligations under this Agreement.
10. Term and Termination
10.1. Term. The term of this Agreement (the “Term”) will begin on the date you agree to it in the manner set forth in the second paragraph of this Agreement and will continue until you or viso.ai terminates it.
10.2. Termination Rights.
(a) Either viso.ai or you are entitled to terminate (i) this Agreement, in its entirety or with respect to particular Apps, and (ii) access to your account with thirty (30) days advance written notice to the other party. In addition, either party may terminate this Agreement upon written notice to the other party if (1) the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, or makes an assignment for the benefit of creditors, (2) the party breaches its confidentiality or privacy related obligations under this Agreement, or (3) infringes or misappropriates the terminating party’s intellectual property rights.
(b) Notwithstanding anything to the contrary in this Agreement, immediately upon notice to you (or with the notice specified by viso.ai at the time), viso.ai may also terminate this Agreement (and/or terminate or suspend either your account on the Marketplace or this Agreement with respect to any particular Apps) under the following circumstances: (i) viso.ai ceases to operate the Marketplace, (ii) you violate viso.ai’s AUP, (iii) viso.ai suspends or terminates the viso.ai Developer Terms as relates to you or your App(s), or (iv) viso.ai determines (in its discretion) that your participation in the Marketplace could result in legal or business liability to viso.ai or any third party or otherwise harm the Marketplace or other Marketplace partners or users.
10.3. Effect of Termination; Transition.
(a) Pending Orders; Transition Period. Following any termination or expiration of this Agreement or withdrawal of your App from the Marketplace, (i) in viso.ai’s discretion, viso.ai may continue to fulfill any end user orders for Apps pending as of the date the termination takes effect, and (ii) viso.ai will use reasonable efforts to take down the listing for your App within forty-five (60) days after the effective date of termination (or, if specified by viso.ai, within the same period after notice of termination) (the “Transition Period”). Viso.ai may also retain copies of your Content after termination or expiration of this Agreement, or withdrawal of your App, for its own record-keeping purposes.
(b) End User Rights. Unless otherwise specified by viso.ai, all end user licenses and subscriptions to Apps (including any related support or maintenance periods) will survive termination or expiration of this Agreement in accordance with the applicable Marketplace Partner Terms. As such, viso.ai may continue to make available any Apps for further access, downloads or re-downloads by existing end users of those Apps for the duration of their applicable license, subscription or maintenance term (including after the Transition Period) (the “Surviving Term”), either directly or through viso.ai Partners.
(c) Your Transition Obligations. If you are a Marketplace Partner of Paid-via-viso.ai Apps, then prior to expiration of the Transition Period (and otherwise in a timely manner) you are responsible for doing the following, consistent with viso.ai’s guidance and instructions:
(1) for Cloud Apps, making the App (including any New Versions) available to viso.ai and Marketplace users on a hosted basis at least until the conclusion of any Surviving Terms for all end users who have purchased such Apps;
(2) taking all actions necessary to move existing end users with Surviving Terms to your non-viso.ai license mechanism, including, as applicable: (i) providing an equivalent product that integrates to viso.ai applications without the use of viso.ai, (ii) contacting end users and providing access, installation and migration instructions, and equivalent license terms and key, and/or (iii) providing end users with data migration tools and migration assistance;
(3) arranging to provide for ongoing support and maintenance (including New Versions) with respect to your Apps for all end users who have purchased such rights for the duration of the term for which you have committed to provide such support and maintenance; and
(4) communicating such matters accurately and in a positive and professional manner to end users.
For the sake of clarity, after termination, you are not obligated to provide any New Versions of your terminated App to viso.ai for distribution under this Agreement thereafter, but viso.ai’s post-termination rights in this Section 11.3 will apply for the latest version of the App you provided to viso.ai hereunder (and any prior version).
10.4. Survival. The following sections of this Agreement will survive termination or expiration of this Agreement and any Transition Period: Sections 4 (Financial Terms), 5.2 (Accuracy), 8 (Additional viso.ai Marketplace Terms) (excluding your participation in any App Program or use of related badges), and 10 (viso.ai Developer Terms) through 19 (General).
11. Representations and Warranties
You represent, warrant and covenant that:
11.1. You are at least 18 years of age and are able to form a legally binding contract. If Marketplace Partner is a business or other legal entity and not an individual, then the individual entering into this Agreement on Marketplace Partner’s behalf represents that he or she has all necessary legal authority to bind Marketplace Partner to this Agreement;
11.2. You have the full right, power, and authority to enter into and fully perform this Agreement;
11.3. Before providing viso.ai any Content or listing Content in the viso.ai Marketplace, you will have obtained the rights necessary for the exercise of all rights granted under this Agreement and to end users in relation to the Content, and you will be solely responsible for and will pay any licensors or co‐owners any royalties or other monies due to them related to such Content;
11.4. None of the following will violate any Law, contain any defamatory material, or violate or infringe any intellectual property, proprietary, or other rights of any person or entity (including contractual rights, copyrights, trademarks, patents, trade dress, trade secret, common law rights, rights of publicity, or privacy, or moral rights): (i) the exercise of any rights granted under this Agreement; (ii) the Content; (iii) the sale or distribution of the Content as contemplated in this Agreement; or (iv) any notices, instructions or advertising by you for or in connection with any Content;
11.5. You will immediately notify viso.ai if you lose any IP rights related to your Marketplace Apps or become aware of a third party claim related to these rights;
11.6. Your Content will not contain any viruses, spyware, “Trojan horses,” or other “malware” or harmful code (“Viruses”), and will not cause injury to any person or damage to any property; and
11.7. You will include any attributions, copyright information and other notices, terms and conditions that may be required to be provided to end users (e.g., as part of your Marketplace Partner Terms) based on your use of third party “open source” software or other third party intellectual property in any App. You will also promptly make available to Viso.ai, end users and any other third party that is entitled to it, the source code corresponding to any App or portion thereof if required, and in the manner required, by applicable third party terms and conditions. Viso.ai’s exploitation (in any manner as permitted hereunder) of any Content will not subject it to, or cause it to violate, any open source or other third party terms or agreements of any kind.
12.1. By viso.ai. Subject to the terms and conditions of this Agreement: (1) viso.ai shall defend a Marketplace Partner of a Paid-via-viso.ai App from claims by third parties alleging that the viso.ai Marketplace itself, when used in connection with such App, infringes such third party’s United States, European Union, or EU member state registered copyright or trademark and (2) viso.ai shall pay damages finally awarded by a court of competent jurisdiction against such Marketplace Partner for such a claim or, if viso.ai settles the claim, the settlement amounts. Viso.ai’s obligations in this Section 13.1 apply only to the viso.ai Marketplace itself and not to any Marketplace Apps, viso.ai Developer Assets, other viso.ai products or services, or other third party content hosted on or used with the viso.ai Marketplace, and in any case Viso.ai’s obligations do not apply if the alleged infringement, misappropriation or violation resulted from any modifications, combinations, or unauthorized use of the viso.ai Marketplace. As a condition to viso.ai’s obligations under this Section 13.1, you must provide viso.ai (i) prompt written notice of the claim (and in any event notice in sufficient time for viso.ai to respond without prejudice), (ii) the exclusive right to control and direct the investigation, settlement and defense (if applicable) of the claim, and (iii) all reasonable necessary cooperation. This Section 13.1 sets forth viso.ai’s sole liability and your exclusive remedy with respect to third party claims of intellectual property rights infringement.
12.2. By You. You will indemnify, defend and hold viso.ai and its subsidiaries (including its respective affiliates, officers, directors, employees, contractors and assigns) harmless from and against any loss, claim, liability, damage, action or cause of action (including reasonable attorneys’ fees) arising out of any third party claim relating to any (i) Content or the use of Content (including any claims made by or arising from end users), (ii) your breach or alleged breach of this Agreement, or (iii) any Incidents caused by your Apps or third party services supporting your Apps (individually, a “Claim,” and collectively, the “Claims”). In any defense or settlement negotiations, you will keep viso.ai apprised of all relevant developments, including the choice of counsel. Viso.ai may participate in the defense or settlement of any Claim at its own expense. You will provide viso.ai with reasonable notice of any judgment entered against viso.ai or any settlement terms offered to settle a Claim and you will not consent to the entry of a judgment or settle a Claim without viso.ai’s prior written consent, which we may not unreasonably withhold. If you do not promptly assume and reasonably conduct the defense of a Claim or take reasonable action to settle any such Claim after being provided with sufficient reasonable advance notice to evaluate the Claim, then viso.ai may take control of the defense (without limiting your indemnification obligations). Your obligations under this Section 13.2 are independent of your other obligations under the Agreement.
13. Viso.ai Confidential Information
13.1. Definition. All information disclosed by viso.ai that is marked as confidential or proprietary or that you should reasonably understand to be confidential or proprietary is “Confidential Information”. Confidential Information includes non-public aspects of the viso.ai Marketplace and viso.ai’s applications; non-public aspects of third-party applications listed in the viso.ai Marketplace to which you obtain access as a result of the relationship between you and viso.ai under this Agreement; non-public End User Data; and non-public technology, technical information and product plans to which you obtain access as a result of the relationship between you and viso.ai under this Agreement. Confidential Information shall not include any information that: (i) is or becomes generally known to the public; (ii) was known to you before its disclosure hereunder; or (iii) is received from a third party, in each case without breach of an obligation owed to Viso.ai or anyone else.
13.2. Your Obligations. During and after the term of this Agreement, you shall (a) maintain Confidential Information in confidence (using at least the same measures as for your own confidential information, and no less than reasonable care) and not divulge it to any third party and (b) only use Confidential Information to fulfill your obligations under this Agreement. If you are compelled by law to disclose Confidential Information, you must provide viso.ai with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at viso.ai’s cost, if viso.ai wishes to contest the disclosure.
13.3. Injunctive Relief. In event of actual or threatened breach of this Section 14, viso.ai shall have the right, in addition to any other remedies available to it, to seek injunctive relief to protect its Confidential Information, it being specifically acknowledged by the parties that other available remedies may be inadequate.
14. Information You Provide Is Not Confidential
14.1. You understand and agree that viso.ai develops its own products and services and works with many other partners and developers, and either viso.ai or these third parties could in the future develop (or already have developed) products similar to yours.
14.2. You should not provide to viso.ai any information that you consider confidential, and you agree that viso.ai is not subject to any confidentiality obligations or use restrictions related to information that you may provide to us in relation to this Agreement. You expressly agree that neither this Agreement nor your participation in the Marketplace limits viso.ai’s right to develop or have developed for it products, concepts, systems or techniques that are similar to or compete with any Marketplace App or any other products, concepts, systems or techniques contemplated by or embodied in information you disclose to viso.ai. For clarity, however, this paragraph, in itself, does not grant viso.ai any license under your intellectual property rights. Nor does this paragraph modify our obligations with respect to your financial data in Section 4.6.
14.3. Subject to Section 15.1, and Section 15.2 notwithstanding, viso.ai agrees to keep your source code confidential to the extent any of it is given to or reverse engineered by viso.ai pursuant to section 8.4(f).
15. Viso.ai Trademarks/Publicity/Intellectual Property
You will not violate viso.ai intellectual property in any form, including viso.ai patents, trademarks, copyrights, and trade secrets. You will: (i) only use the viso.ai Marks in the form and manner as set forth in viso.ai’s Trademark Guidelines, Marketplace Brand Guidelines and AdWords Trademark Policy and only in connection with the sale of your Marketplace Apps in the viso.ai Marketplace (if any conflict, real or perceived, arises in the foregoing Guidelines, viso.ai retains the right to enforce the more restrictive Guideline); (ii) follow any other policies that viso.ai communicates to you regarding the use of viso.ai Marks as keywords in online search engines; (iii) not register any domain names that contain any terms that are the same or similar to any viso.ai Marks; and (iv) upon expiration or termination of this Agreement for any reason, immediately cease all use of the viso.ai Marks, unless you are otherwise authorized to continue using the Viso.ai Marks pursuant to a separate written agreement with viso.ai. “Viso.ai Marks” means the trademarks, trade names, service marks and logos owned or otherwise used by viso.ai. Nothing contained herein shall grant you any ownership right in the viso.ai Marks or any other viso.ai intellectual property.
16. Disclaimers and Limitations of Liability
16.1. Disclaimer of Warranties. THE VISO.AI MARKETPLACE, VISO:AI MARKS AND ALL VISO.AI DEVELOPER ASSETS ARE PROVIDED “AS IS” AND VISO.AI EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
16.2. Limitations of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13 ABOVE AND EXCEPT FOR MARKETPLACE PARTNER’S BREACH OF SECTION 8.1 (PROHIBITED ACTIONS; RESPONSIBILITIES), SECTION 8.4 (END USER DATA AND PRIVACY-RELATED OBLIGATIONS) OR SECTION 14 (CONFIDENTIALITY): (A) NEITHER YOU NOR VISO.AI SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF YOU OR WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (B) IN NO EVENT SHALL EITHER YOUR OR VISO.AI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE VISO.AI MARKETPLACE, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED VISO.AI’S MARGIN IN THE TWELVE-MONTH PERIOD PRECEDING THE CLAIM. FOR THE PURPOSES OF THIS AGREEMENT, “VISO.AI’S MARGIN” MEANS THE AMOUNTS RECEIVED BY VISO.AI FROM SALES OF YOUR APPS, MINUS THE REVENUE SHARE VISO.AI HAS PAID YOU.
16.3. Basis of Bargain; Failure of Essential Purpose. The parties have entered into this Agreement relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk stated in this Agreement and agree that such provisions are an essential basis of the bargain between the parties. The parties further agree that all such limitations, disclaimer and other provisions will survive and apply even if any limited remedy is found to have failed of its essential purpose.
17. Agreement Changes
As the viso.ai Marketplace evolves over time, we may need to update this Agreement. Therefore, viso.ai reserves the right to change this Agreement at any time in its sole discretion with the changes to the Agreement becoming effective thirty (30) days after notice (unless viso.ai specifies a shorter notice period). Viso.ai will give you notice of the changes by posting an updated version of this Agreement on its website or within the Marketplace, or by emailing you at an email address you have provided. If you do not agree to any of the changes, your sole remedy is to terminate this Agreement prior to the date on which the changes are to take effect by (i) providing written notice to viso.ai and (ii) withdrawing all of your Apps from the Marketplace. If you terminate this Agreement according to the preceding sentence, the changes will not apply to you. Otherwise, your continued participation in the viso.ai Marketplace after the changes take effect will constitute your acceptance of the changes. In addition, you may be required to click to agree to the modified Agreement to continue participating in the Marketplace.
18. Dispute Resolution; Governing Law
18.1. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 18.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 18.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.
18.2. Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the applicable laws of Schaffhausen, Switzerland, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Schaffhausen, Switzerland and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Schaffhausen, Switzerland, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.
18.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 18.1 (Informal Resolution) and 18.2 (Governing Law; Jurisdiction), nothing in this Agreement will prevent viso.ai from seeking injunctive relief with respect to a violation of intellectual property rights, any Incident or other security issue, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
18.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted.
This Agreement may not be amended except in writing signed by both parties or as provided in Section 17 (Agreement Changes) above. If any provision of this Agreement is held invalid by a court with jurisdiction over the parties to this Agreement, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of this Agreement will remain in full force and effect. The word “including” will be interpreted without limitation when used in this Agreement. The parties to this Agreement are independent contractors, not agents, joint venturers or partners, despite use of the term “Partner”. Each party will bear its own costs and expenses in performing this Agreement. Viso.ai’s failure to enforce any provision of this Agreement will not constitute a waiver of viso.ai’s rights to subsequently enforce the provision. Viso.ai may freely assign, transfer, and delegate its rights and obligations under this Agreement. You acknowledge and agree that Viso.ai’s affiliates, contractors and service providers may exercise all rights of viso.ai under this Agreement, including viso.ai’s license rights. You may not assign any of your rights or obligations under this Agreement, whether by operation of law or otherwise, without viso.ai’s prior written consent, except that you may assign all of your rights and obligations under this Agreement to any corporation or other entity without consent in connection with a merger or the sale of all or substantially all of your assets as long as (1) you give viso.ai written notice of any such assignment at least ten business days before such assignment and (2) the assignee agrees in writing to be bound by all terms and conditions of this Agreement; however, in the event that viso.ai determines that such assignment is to a competitor of viso.ai, viso.ai may terminate this Agreement upon notice to you. Subject to the foregoing limitations, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. This Agreement constitutes the entire agreement between the parties with respect to its subject matter, supersedes any and all prior or contemporaneous agreements between the parties with respect to its subject matter, and does not give any third party (except where specified) any rights or remedies hereunder. Any notice or other communication to be given hereunder will be in writing and given (i) by viso.ai via email to email@example.com or to such other email or physical addresses as viso.ai may specify from time to time. The date of receipt will, in the case of email, be deemed the date on which such notice is transmitted.