Terms of Service
Effective starting: August 6, 2022
Thanks for using viso.ai’s Cloud Products! These viso.ai Cloud Terms of
Service (these “Terms”) describe your rights and
responsibilities as a customer of our Cloud Products. As applicable to the
specific Cloud Product, if you are being invited or added to a Cloud
Product set up by a viso.ai customer, the User Notice governs your access
and use of the Cloud Product (and not these Terms). These Terms are between
you and the viso.ai entity that owns or operates the Cloud Product that you
are using or accessing (“viso.ai”, “we”
or “us”). “You” means the entity you
represent in accepting these Terms or, if that does not apply, you
individually. If you are accepting on behalf of your employer or another
entity, you represent and warrant that: (i) you have full legal authority
to bind your employer or such entity to these Terms; (ii) you have read and
understand these Terms; and (iii) you agree to these Terms on behalf of the
party that you represent. If you don’t have the legal authority to bind
your employer or the applicable entity please do not click “I agree” (or
similar button or checkbox) that is presented to you.
PLEASE NOTE THAT IF YOU SIGN UP FOR A CLOUD PRODUCT USING AN EMAIL
ADDRESS FROM YOUR EMPLOYER OR ANOTHER ENTITY, THEN (A) YOU WILL BE
DEEMED TO REPRESENT SUCH PARTY, (B) YOUR CLICK TO ACCEPT WILL BIND YOUR
EMPLOYER OR THAT ENTITY TO THESE TERMS, AND (C) THE WORD “YOU” IN THESE
TERMS WILL REFER TO YOUR EMPLOYER OR THAT ENTITY.
These Terms are effective as of the date you first click “I agree”
(or similar button or checkbox) or use or access a Cloud Product,
whichever is earlier (the “Effective Date”). These Terms do not
have to be signed in order to be binding. You indicate your assent
to these Terms by clicking “I agree” (or similar button or
checkbox) at the time you register for a Cloud Product, create a
Cloud Product account, or place an Order. For No-Charge Products,
you also indicate your assent to these Terms by accessing or using
the applicable No-Charge Product.
1. What these Terms cover.
1.1.
Cloud Products
. These Terms govern our Cloud Products, related Support, and Additional
Services. These Terms include Our Policies (including our Privacy Policy),
the Data Processing Agreement, the Product-Specific Terms, and your Orders.
1.2.
Product-Specific Terms
. Some Cloud Products may be subject to additional terms specific to that
product as set forth in the Product-Specific Terms. By accessing or using a
product covered by the Product-Specific Terms, you also agree to the
Product-Specific Terms.
2. How Cloud Products are administered.
2.1.
Administrators
. Through the Cloud Products, you may be able to specify certain End Users
as Administrators, who will have important rights and controls over your
use of Cloud Products and End User Accounts. This may include making Orders
for Cloud Products or enabling Apps (which may incur fees); creating,
de-provisioning, monitoring or modifying End User Accounts, and setting End
User usage permissions; and managing access to Your Data by End Users or
others. Administrators may also take over management of accounts previously
registered using an email address belonging to your domain. Without
limiting Section 2.4 (Responsibility for End Users), which fully applies to
Administrators, you are responsible for whom you allow to become
Administrators and any actions they take, including as described above. You
agree that our responsibilities do not extend to the internal management or
administration of the Cloud Products for you.
2.2.
Reseller as Administrator
. If you order Cloud Products through a Reseller, then you are responsible
for determining whether the Reseller may serve as an Administrator and for
any related rights or obligations in your applicable agreement with the
Reseller. As between you and viso.ai, you are solely responsible for any
access by Reseller to your accounts or your other End User Accounts.
2.3.
End User Consent
. You will provide all required disclosures to and will obtain and maintain
all required consents from End Users to allow: (i) Administrators to have
the access described in these Terms and the Privacy Policy; and (ii)
viso.ai’s provision of the Cloud Products to Administrators and End Users.
You will provide evidence of such consents upon our reasonable request.
2.4.
Responsibility for End Users
. Our Cloud Products have various user onboarding flows. Some Cloud
Products require users to be designated by Administrators; some allow users
to sign up for individual accounts which can become associated with teams
or organizations at a later time; and some may allow users to invite other
users. You are responsible for understanding the settings and controls for
each Cloud Product you use and for controlling whom you allow to become an
End User. If payment is required for End Users to use or access a Cloud
Product, then we are only required to provide the Cloud Products to those
End Users for whom you have paid the applicable fees, and only such End
Users are permitted to access and use the Cloud Products. Some Cloud
Products may allow you to designate different types of End Users, in which
case pricing and functionality may vary according to the type of End User.
You are responsible for compliance with these Terms by all End Users,
including for any payment obligations. Please note that you are responsible
for the activities of all your End Users, including Orders they may place
and how End Users use your Data, even if those End Users are not from your
organization or domain. We may display our User Notice to End Users at sign
up, account creation, Cloud Product registration, or in-product. If you use
single sign-on (SSO) for identity management of your Cloud Product(s) such
that End Users will bypass these screens and our User Notice, you are
responsible for displaying our User Notice to End Users and for any damages
resulting from your failure to do so.
2.5.
Credentials
. You must require that all End Users keep their user IDs and passwords for
the Cloud Products strictly confidential and do not share such information
with any unauthorized person. User IDs are granted to individual, named
persons and may not be shared. You are responsible for any and all actions
taken using End User Accounts and passwords, and you agree to immediately
notify us of any unauthorized use of which you become aware.
2.6.
Age Requirement for End Users
. The Cloud Products are not intended for, and should not be used by,
anyone under the age of 16. You are responsible for ensuring that all End
Users are at least 16 years old.
2.7.
Domain Name Ownership
. Where you are required to specify a domain for the operation of a Cloud
Product or certain Cloud Product features, we may verify that you own or
control that domain. If you do not own or control the domain you specify,
then we will have no obligation to provide you with the Cloud Product or
Cloud Product features.
3. What’s included in your Cloud Product subscriptions; what are the
restrictions.
3.1.
Access to Cloud Products
. Subject to these Terms and during the applicable Subscription Term, you
may access and use the Cloud Products for your own business purposes or
personal use, as applicable, all in accordance with these Terms, the
applicable Order and the Documentation. This includes the right, as part of
your authorized use of the Cloud Products, to download and use the client
software associated with the Cloud Products. The rights granted to you in
this Section 3.1 are non-exclusive, non-sublicensable and non-transferable.
3.2.
Support
. During the Subscription Term, we will provide Support for the Cloud
Products in accordance with the corresponding support agreement (to the
extent applicable), and the applicable Order.
3.3.
Restrictions
. Except as otherwise expressly permitted in these Terms, you will not: (a)
reproduce, modify, adapt or create derivative works of the Cloud Products;
(b) rent, lease, distribute, sell, sublicense, transfer or provide access
to the Cloud Products to a third party; (c) use the Cloud Products for the
benefit of any third party; (d) incorporate any Cloud Products into a
product or service you provide to a third party; (e) interfere with or
otherwise circumvent mechanisms in the Cloud Products intended to limit
your use; (f) reverse engineer, disassemble, decompile, translate or
otherwise seek to obtain or derive the source code, underlying ideas,
algorithms, file formats or non-public APIs to any Cloud Products, except
to the extent expressly permitted by applicable law (and then only upon
advance notice to us); (g) remove or obscure any proprietary or other
notices contained in any Cloud Product; (h) use the Cloud Products for
competitive analysis or to build competitive products; (i) publicly
disseminate information regarding the performance of the Cloud Products; or
(j) encourage or assist any third party to do any of the foregoing.
4. Our security and data privacy policies.
4.1.
Security and Certifications
. We implement and maintain physical, technical and administrative security
measures designed to protect Your Data from unauthorized access,
destruction, use, modification, or disclosure.
4.2.
Privacy
. We collect certain data and information about you and your End Users in
connection with your and your End Users’ use of the Cloud Products and
otherwise in connection with these Terms. We collect and use all such data
and information in accordance with our Privacy Policy, and Data Processing
Agreement, which you acknowledge.
4.3.
Improving Cloud Products
. We are always striving to improve the Cloud Products. In order to do so,
we use analytics techniques to better understand how our Cloud Products are
being used. For more information on these techniques and the type of data
collected, please read our Privacy Policy.
4.4.
Subpoenas
. Nothing in these Terms prevents us from disclosing Your Data to the
extent required by law, subpoenas or court orders, but we will use
commercially reasonable efforts to notify you where permitted to do so.
viso.ai strives to balance your privacy rights with other legal
requirements.
5. Terms that apply to Your Data.
5.1.
Using Your Data to provide Cloud Products to You
. You retain all right, title and interest in and to Your Data in the form
submitted to the Cloud Products. Subject to these Terms, and solely to the
extent necessary to provide the Cloud Products to you, you grant us a
worldwide, limited term license to access, use, process, copy, distribute,
perform, export, and display Your Data. Solely to the extent that
reformatting Your Data for display in a Cloud Product constitutes a
modification or derivative work, the foregoing license also includes the
right to make modifications and derivative works. We may also access your
accounts, End User Accounts, and your Cloud Products with End User
permission in order to respond to your support requests.
5.2.
Your Data Compliance Obligations
. You and your use of Cloud Products (including use by your End Users) must
comply at all times with these Terms and all Laws. You represent and
warrant that: (i) you have obtained all necessary rights, releases and
permissions to submit all Your Data to the Cloud Products and to grant the
rights granted to us in these Terms and (ii) Your Data and its submission
and use as you authorize in these Terms will not violate (1) any Laws, (2)
any third-party intellectual property, privacy, publicity or other rights,
or (3) any of your or third-party policies or terms governing Your Data.
Other than our express obligations under Section 4 (Our security and data
privacy policies), we assume no responsibility or liability for Your Data,
and you are solely responsible for Your Data and the consequences of
submitting and using it with the Cloud Products.
5.3.
No Prohibited Sensitive Personal Information
. You will not submit to the Cloud Products (or use the Cloud Products to
collect) any Sensitive Personal Information unless its processing is
expressly supported as a feature of the applicable Cloud Product in the
applicable Documentation. Notwithstanding any other provision to the
contrary, we have no liability under these Terms for Sensitive Personal
Information submitted in violation of the foregoing.
5.4.
Your Indemnity
. You will defend, indemnify and hold harmless us (and our Affiliates,
officers, directors, agents and employees) from and against any and all
claims, costs, damages, losses, liabilities and expenses (including
reasonable attorneys’ fees and costs) resulting from any claim arising from
or related to (i) your breach of Section 2.3 (End User Consent) or any
claims or disputes brought by your End Users arising out of their use of
Cloud Products, (ii) your breach (or alleged breach) of Sections 5.2 (Your
Data Compliance Obligations) or 5.3 (No Prohibited Sensitive Personal
Information); or (iii) Your Materials. This indemnification obligation is
subject to you receiving (a) prompt written notice of such claim (but in
any event notice in sufficient time for you to respond without prejudice);
(b) the exclusive right to control and direct the investigation, defense or
settlement of such claim and (c) all reasonable necessary cooperation by us
at your expense.
5.5.
Removals and Suspension
. We have no obligation to monitor any content uploaded to the Cloud
Products. Nonetheless, if we deem such action necessary based on your
violation of these Terms, including Our Policies, we may (1) remove Your
Data from the Cloud Products or (2) suspend your access to the Cloud
Products. We will use reasonable efforts to provide you with advance notice
of removals and suspensions when practicable, but if we determine that your
actions endanger the operation of the Cloud Product or other users, we may
suspend your access or remove Your Data immediately without notice. We have
no liability to you for removing or deleting Your Data from or suspending
your access to any Cloud Products as described in this Section 5.5.
6. Using third-party products with the Cloud Products.
6.1.
Third-Party Products
. You (including your End Users) may choose to use or procure other
third-party products or services in connection with the Cloud Products,
including Third Party Apps (see Section 6.2 (Marketplace Apps)) or
implementation, customization, training or other services. Your receipt or
use of any third-party products or services (and the third parties’ use of
any of Your Data) is subject to a separate agreement between you and the
third-party provider. If you enable or use third party products or services
with the Cloud Products (including Third Party Apps as referenced in
Section 6.2 (Marketplace Apps)), we will allow the third party providers to
access or use Your Data as required for the interoperation of their
products and services with the Cloud Products. This may include
transmitting, transferring, modifying or deleting Your Data, or storing
Your Data on systems belonging to the third-party providers or other third
parties. Any third-party provider’s use of Your Data is subject to the
applicable agreement between you and such third-party provider.
We are not responsible for any access to or use of Your Data by third
party providers or their products or services, or for the security or
privacy practices of any third-party provider or its products or
services. You are solely responsible for your decision to permit any
third-party provider or third-party product or service to use Your
Data. It is your responsibility to carefully review the agreement
between you and the third-party provider, as provided by the applicable
third-party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR
ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY,
SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY
PROVIDERS OR VENDORS.
6.2.
Marketplace Apps
. As further described in the viso.ai Marketplace Terms of Use, the viso.ai
Marketplace lists a variety of Apps that may be used with Cloud Products,
including both viso.ai Apps and Third-Party Apps. viso.ai Apps for Cloud
Products are considered “Cloud Products” under these Terms (unless we
specify otherwise through the viso.ai Marketplace). Third-Party Apps are
not Cloud Products and remain subject to their own applicable Vendor Terms.
We may enable interoperation of the Cloud Products with Third-Party Apps as
set forth in Section 6.1 (Third-Party Products). The terms“Apps”, “viso.ai Apps”,
“Third Party Apps”, “Vendor” and “Vendor Terms” are defined in the viso.ai Marketplace
Terms of Use, which is a separate agreement governing use of the viso.ai
Marketplace.
7. Using viso.ai developer assets.
Access to any of our APIs, SDKs or other viso.ai developer assets is
subject to a separate agreement.
8. Additional Services.
8.1.
Additional Services
. Subject to these Terms, you may purchase Additional Services that we will
provide to you pursuant to the applicable Order. Additional Services may be
subject to additional policies and terms as specified by us.
8.2.
Our Deliverables
. We will retain all right, title and interest in and to Our Deliverables.
You may use any of Our Deliverables provided to you only in connection with
the Cloud Products, subject to the same usage rights and restrictions as
for the Cloud Products. For clarity, Our Deliverables are not considered
Cloud Products, and any Cloud Products are not considered to be Our
Deliverables.
8.3.
Your Materials
. You agree to provide us with reasonable access to Your Materials as
reasonably necessary for our provision of Additional Services. If you do
not provide us with timely access to Your Materials, our performance of
Additional Services will be excused until you do so. You retain your rights
in Your Materials, subject to our ownership of any Cloud Products, any of
Our Deliverables or any of Our Technology underlying Your Materials. We
will use Your Materials solely for purposes of performing the Additional
Services. You represent and warrant that you have all necessary rights in
Your Materials to provide them to us for such purposes.
8.4.
Training Not Covered
. Your purchase, and our provision, of Training is subject to a separate
agreement.
9. Billing, renewals, and payment.
9.1.
Monthly and Annual Plans
. Except for No-Charge Products, all Cloud Products are offered either on a
monthly subscription basis or an annual subscription basis.
9.2.
Renewals
. Except as otherwise specified in your Order, unless either party cancels
your subscription prior to expiration of the current Subscription Term,
your subscription will automatically renew for another Subscription Term of
a period equal to your initial Subscription Term. You will provide any
notice of non-renewal through the means we designate, which may include
account settings in the Cloud Products or contacting our support team.
Cancelling your subscription means that you will not be charged for the
next billing cycle, but you will not receive any refunds or credits for
amounts that have already been charged. All renewals are subject to the
applicable Cloud Product continuing to be offered and will be charged at
the then-current rates.
9.3.
Adding Users
. You may add users, increase storage limits, or otherwise increase your
use of Cloud Products by placing a new Order or modifying an existing
Order. Unless otherwise specified in the applicable Order, we will charge
you for any increased use at our then-current rates, prorated for the
remainder of the then-current Subscription Term.
9.4.
Payment
. You will pay all fees in accordance with each Order, by the due dates and
in the currency specified in the Order. If a PO number is required in order
for an invoice to be paid, then you must provide such PO number to viso.ai
by emailing the PO number to info@viso.ai. For Additional Services provided
at any non-viso.ai location, unless otherwise specified in your Order, you
will reimburse us for our pre-approved travel, lodging and meal expenses,
which we may charge as incurred. Other than as expressly set forth in
Section 10 (Our return policy), 18.3 (Warranty Remedy), Section 20 (IP
Indemnification) or Section 24 (Changes to these Terms), all amounts are
non-refundable, non-cancelable and non-creditable. You agree that we may
bill your credit card or other payment method for renewals, additional
users, overages to set limits or scopes of use, expenses, and unpaid fees,
as applicable.
9.5.
Delivery
. We will deliver the login instructions for Cloud Products to your account
or through other reasonable means no later than when we have received
payment of the applicable fees. You are responsible for accessing your
account to determine that we have received payment and that your Order has
been processed. All deliveries under these Terms will be electronic.
10. Our return policy.
As part of our commitment to customer satisfaction and without limiting the
Performance Warranty in Section 18 (Warranties and Disclaimer), you may
terminate your initial Order of a Cloud Product under these Terms, for no
reason or any reason, by providing notice of termination to us no later
than fourteen (14) days after the Order date for such Cloud Product. In the
event you terminate your initial Order under this Section 10, at your
request (which may be made through your account with us), we will refund
you the amount paid under such Order. This termination and refund right
applies only to your initial Order of the Cloud Product and only if you
exercise your termination right within the period specified above, and does
not apply to Additional Services. You understand that we may change this
practice in the future in accordance with Section 24 (Changes to these
Terms).
11. Taxes not included.
11.1.
Taxes
. Your fees under these Terms exclude any taxes or duties payable in
respect of the Cloud Products in the jurisdiction where the payment is
either made or received. To the extent that any such taxes or duties are
payable by us, you must pay to us the amount of such taxes or duties in
addition to any fees owed under these Terms. Notwithstanding the foregoing,
if you have obtained an exemption from relevant taxes or duties as of the
time such taxes or duties are levied or assessed, you may provide us with
such exemption information, and we will use reasonable efforts to provide
you with invoicing documents designed to enable you to obtain a refund or
credit from the relevant revenue authority, if such a refund or credit is
available.
11.2.
Withholding Taxes
. You will pay all fees net of any applicable withholding taxes. You and we
will work together to avoid any withholding tax if exemptions, or a reduced
treaty withholding rate, are available. If we qualify for a tax exemption,
or a reduced treaty withholding rate, we will provide you with reasonable
documentary proof. You will provide us reasonable evidence that you have
paid the relevant authority for the sum withheld or deducted.
12. If you purchased through a Reseller.
If you make any purchases through an authorized partner or reseller of
viso.ai (“Reseller”):
(a) Instead of paying us, you will pay the applicable amounts to the
Reseller, as agreed between you and the Reseller. We may suspend or
terminate your rights to use Cloud Products if we do not receive the
corresponding payment from the Reseller.
(b) Your order details (e.g., the Cloud Products you are entitled to use,
the number of End Users, the Subscription Term, etc.) will be as stated in
the Order placed with us by the Reseller on your behalf, and Reseller is
responsible for the accuracy of any such Order as communicated to us.
(c) If you are entitled to a refund under these Terms, then unless we
otherwise specify, we will refund any applicable fees to the Reseller and
the Reseller will be solely responsible for refunding the appropriate
amounts to you.
(d) Resellers are not authorized to modify these Terms or make any promises
or commitments on our behalf, and we are not bound by any obligations to
you other than as set forth in these Terms.
(e) The amount paid or payable by the Reseller to us for your use of the
applicable Cloud Product under these Terms will be deemed the amount
actually paid or payable by you to us under these Terms for purposes of
calculating the liability cap in Section 19.2.
13. No contingencies on other products of future functionality.
You acknowledge that the Cloud Products and Additional Services referenced
in an Order are being purchased separately from any of our other products
or services. Payment obligations for any products or services are not
contingent on the purchase or use of any of our other products (and for
clarity, any purchases of Cloud Products and Additional Services are
separate and not contingent on each other, even if listed on the same
Order). You agree that your purchases are not contingent on the delivery of
any future functionality or features (including future availability of any
Cloud Products beyond the current Subscription Term), or dependent on any
oral or written public comments we make regarding future functionality or
features.
14. Evaluations, trials, and betas.
We may offer certain Cloud Products (including some viso.ai Apps) to you at
no charge, including free accounts, trial use and Beta Versions as defined
below (collectively, “No-Charge Products”). Your use of
No-Charge Products is subject to any additional terms that we specify and
is only permitted during the Subscription Term we designate (or, if not
designated, until terminated in accordance with these Terms). Except as
otherwise set forth in this Section 14, the terms and conditions of these
Terms governing Cloud Products, including Section 3.3 (Restrictions), fully
apply to No-Charge Products. We may modify or terminate your right to use
No-Charge Products at any time and for any reason in our sole discretion,
without liability to you. You understand that any pre-release and beta
Cloud Products, and any pre-release and beta features within generally
available Cloud Products, that we make available (collectively, “ Beta Versions”) are still under
development, may be inoperable or incomplete and are likely to contain more errors and bugs
than generally available Cloud Products. We make no promises that any Beta
Versions will ever be made generally available. In some circumstances, we
may charge a fee in order to allow you to access Beta Versions, but the
Beta Versions will still remain subject to this Section 14. All information
regarding the characteristics, features or performance of any No-Charge
Products (including Beta Versions) constitutes our Confidential
Information. To the maximum extent permitted by applicable law, we disclaim
all obligations or liabilities with respect to No-Charge Products,
including any Support, warranty and indemnity obligations. NOTWITHSTANDING
ANYTHING ELSE IN THESE TERMS, OUR MAXIMUM AGGREGATE LIABILITY TO YOU IN
RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100.
15. IP Rights in the Cloud Products and Feedback.
Cloud Products are made available on a limited access basis, and no
ownership right is conveyed to you, irrespective of the use of terms such
as “purchase” or “sale”. We and our licensors have and retain all right,
title and interest, including all intellectual property rights, in and to
Our Technology (including the Cloud Products). From time to time, you may
choose to submit Feedback to us. We may in connection with any of our
products or services freely use, copy, disclose, license, distribute and
exploit any Feedback in any manner without any obligation, royalty or
restriction based on intellectual property rights or otherwise. No Feedback
will be considered your Confidential Information, and nothing in these
Terms limits our right to independently use, develop, evaluate, or market
products or services, whether incorporating Feedback or otherwise.
16. Confidentiality.
Except as otherwise set forth in these Terms, each party agrees that all
code, inventions, know-how and business, technical and financial
information disclosed to such party (“Receiving Party”) by
the disclosing party (“Disclosing Party”) constitute the
confidential property of the Disclosing Party ( “Confidential Information”),
provided that it is identified as confidential at the time of disclosure or should be
reasonably known by the Receiving Party to be confidential or proprietary
due to the nature of the information disclosed and the circumstances
surrounding the disclosure. Any of Our Technology and any performance
information relating to the Cloud Products will be deemed our Confidential
Information without any marking or further designation. Except as expressly
authorized herein, the Receiving Party will (1) hold in confidence and not
disclose any Confidential Information to third parties and (2) not use
Confidential Information for any purpose other than fulfilling its
obligations and exercising its rights under these Terms. The Receiving
Party may disclose Confidential Information to its employees, agents,
contractors and other representatives having a legitimate need to know,
provided that they are bound to confidentiality obligations no less
protective of the Disclosing Party than this Section 16 and that the
Receiving Party remains responsible for compliance by them with the terms
of this Section 16. The Receiving Party’s confidentiality obligations will
not apply to information which the Receiving Party can document: (i) was
rightfully in its possession or known to it prior to receipt of the
Confidential Information; (ii) is or has become public knowledge through no
fault of the Receiving Party; (iii) is rightfully obtained by the Receiving
Party from a third party without breach of any confidentiality obligation;
or (iv) is independently developed by employees of the Receiving Party who
had no access to such information. The Receiving Party may also disclose
Confidential Information if so required pursuant to a regulation, law or
court order (but only to the minimum extent required to comply with such
regulation or order and with advance notice to the Disclosing Party). The
Receiving Party acknowledges that disclosure of Confidential Information
would cause substantial harm for which damages alone would not be a
sufficient remedy, and therefore that upon any such disclosure by the
Receiving Party the Disclosing Party will be entitled to appropriate
equitable relief in addition to whatever other remedies it might have at
law.
17. Term and Termination.
17.1.
Term
. These Terms are effective as of the Effective Date and expire on the date
of expiration or termination of all Subscription Terms.
17.2.
Termination for Cause
. Either party may terminate these Terms (including all related Orders) if
the other party (a) fails to cure any material breach of these Terms within
thirty (30) days after notice; (b) ceases operation without a successor; or
(c) seeks protection under any bankruptcy, receivership, trust deed,
creditors’ arrangement, composition or comparable proceeding, or if any
such proceeding is instituted against that party (and not dismissed within
sixty (60) days thereafter).
17.3.
Termination for Convenience
. You may choose to stop using the Cloud Products and terminate these Terms
(including all Orders) at any time for any reason upon written notice to
us, but, unless you are exercising your right to terminate early pursuant
to Section 10 (Our return policy), upon any such termination (i) you will
not be entitled to a refund of any pre-paid fees and (ii) if you have not
already paid all applicable fees for the then-current Subscription Term or
related services period (as applicable), any such fees that are outstanding
will become immediately due and payable.
17.4.
Effects of Termination
. Upon any expiration or termination of these Terms, you must cease using
all Cloud Products and delete (or at our request, return) all Confidential
Information or other materials of ours in your possession, including on any
third-party systems operated on your behalf. You will certify such deletion
upon our request. You will not have access to Your Data (and we may delete
all of Your Data unless legally prohibited) after expiration or termination
of these Terms (or its applicable Subscription Term), so you should make
sure to export Your Data using the functionality of the Cloud Products
(where possible) during the applicable Subscription Term. If you terminate
these Terms in accordance with Section 17.2 (Termination for Cause), we
will refund you any prepaid fees covering the remainder of the then-current
Subscription Term after the effective date of termination. If we terminate
these Terms in accordance with Section 17.2 (Termination for Cause), you
will pay any unpaid fees covering the remainder of the then-current
Subscription Term after the effective date of termination. In no event will
termination relieve you of your obligation to pay any fees payable to us
for the period prior to the effective date of termination. Except where an
exclusive remedy may be specified in these Terms, the exercise by either
party of any remedy, including termination, will be without prejudice to
any other remedies it may have under these Terms, by law or otherwise.
17.5.
Survival
. The following provisions will survive any termination or expiration of
these Terms: Sections 3.3 (Restrictions), 5.4 (Your Indemnity), 6.1
(Third-Party Products), 9.4 (Payment), 11 (Taxes not included), 14
(Evaluations, trials, and betas) (disclaimers and use restrictions only),
15 (IP Rights in the Cloud Products and Feedback), 16 (Confidentiality), 17
(Term and Termination), 18.4 (Warranty Disclaimer), 19 (Limitations of
Liability), 20 (IP Indemnification) (but solely with respect to claims
arising from your use of Cloud Products during the Subscription Term), 22
(Dispute Resolution) and 26 (General Provisions).
18 Warranties and Disclaimer.
18.1.
Mutual Warranties
. Each party represents and warrants that it has the legal power and
authority to enter into these Terms.
18.2.
Our Warranties
. We warrant, for your benefit only, that we use commercially reasonable
efforts to prevent introduction of viruses, Trojan horses or similar
harmful materials into the Cloud Products (but we are not responsible for
harmful materials submitted by you or End Users) (the “Performance Warranty”).
18.3.
Warranty Remedy
. We will use commercially reasonable efforts, at no charge to you, to
correct reported non-conformities with the Performance Warranty. If we
determine corrections to be impracticable, either party may terminate the
applicable Subscription Term. In this case, you will receive a refund of
any fees you have pre-paid for use of the Cloud Product for the terminated
portion of the applicable Subscription Term. The Performance Warranty will
not apply: (i) unless you make a claim within fourteen (14) days of the
date on which you first noticed the non-conformity, (ii) if the
non-conformity was caused by misuse, unauthorized modifications or
third-party products, software, services or equipment or (iii) to No-Charge
Products. Our sole liability, and your sole and exclusive remedy, for any
breach of the Performance Warranty are set forth in this Section 18.
18.4.
WARRANTY DISCLAIMER
. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 18, ALL CLOUD PRODUCTS,
SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR
SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF
ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A
PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS,
IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE
TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE CLOUD PRODUCTS WILL BE
UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR
THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND
THAT USE OF THE CLOUD PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR
DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT
RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED
ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL
BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR
THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY
MEASURES OR THOSE OF OUR THIRD-PARTY SERVICE PROVIDERS. WE WILL NOT BE
LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS
INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER
SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY
RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL
BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
19. Limitation of Liability.
19.1.
Consequential Damages Waiver
. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS
FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF
SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY
INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY
KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
19.2.
Liability Cap
. EXCEPT FOR EXCLUDED CLAIMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS
IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
19.3.
Excluded Claims
. “Excluded Claims” means (1) amounts owed by you under
any Orders, (2) either party’s express indemnification obligations in these
Terms, and (3) damages for bodily injuries or death, (4) damages caused by wilful
misconduct or gross negligence, (5) your breach of Section 3.3 (Restrictions) or of
Section 2 (Combining the Products with Open Source Software).
19.4.
Nature of Claims and Failure of Essential Purpose
. The parties agree that the waivers and limitations specified in this
Section 19 apply regardless of the form of action, whether in contract,
tort (including negligence), strict liability or otherwise and will survive
and apply even if any limited remedy specified in these Terms is found to
have failed of its essential purpose.
20. IP Indemnification.
We will defend you against any claim brought against you by a third party
alleging that the Cloud Products, when used as authorized under these
Terms, infringe any third-party patent, copyright or trademark, or
misappropriates any third-party trade secret enforceable in any
jurisdiction that is a signatory to the Berne Convention (a “ Claim”), and we will indemnify you and hold you harmless
against any damages and costs finally awarded on the Claim by a court of
competent jurisdiction or agreed to via settlement executed by us
(including reasonable attorneys’ fees), provided that we have received from
you: (a) prompt written notice of the Claim (but in any event notice in
sufficient time for us to respond without prejudice); (b) reasonable
assistance in the defense and investigation of the Claim, including
providing us a copy of the Claim, all relevant evidence in your possession,
custody, or control, and cooperation with evidentiary discovery,
litigation, and trial, including making witnesses within your employ or
control available for testimony; and (c) the exclusive right to control and
direct the investigation, defense, and settlement (if applicable) of the
Claim. If your use of the Cloud Products is (or in your opinion is likely
to be) enjoined, whether by court order or by settlement, or if we
determine such actions are reasonably necessary to avoid material
liability, we may, at our option and in our discretion: (i) procure the
right for your continued use of the Cloud Product in accordance with these
Terms; (ii) substitute a substantially functionally similar Cloud Product;
or (iii) terminate your right to continue using the Cloud Product and
refund any prepaid amounts for the terminated portion of the Subscription
Term. Our indemnification obligations above do not apply: (1) if the total
aggregate fees we receive with respect to your subscription to a Cloud
Product in the twelve (12) month period immediately preceding the Claim is
less than US$50,000; (2) if the Cloud Product is modified by any party
other than us, but solely to the extent the alleged infringement is caused
by such modification; (3) if the Cloud Product is used in combination with
any non-viso.ai product, software, service or equipment, but solely to the
extent the alleged infringement is caused by such combination; (4) to
unauthorized use of Cloud Products; (5) to any Claim arising as a result of
(y) Your Data or circumstances covered by your indemnification obligations
in Section 5.4 (Your Indemnity) or (z) any third-party deliverables or
components contained with the Cloud Products or (6) if you settle or make
any admissions with respect to a Claim without our prior written consent.
THIS SECTION 20 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR
EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN
CONNECTION WITH ANY CLOUD PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE
TERMS.
21. Publicity Rights.
We may identify you as an viso.ai customer in our promotional materials. We
will promptly stop doing so upon your request sent to info@viso.ai.
22. Dispute Resolution.
22.1.
Informal Resolution
. In the event of any controversy or claim arising out of or relating to
these Terms, 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 these Terms pursuant to Section 22.2 (Governing Law;
Jurisdiction). All negotiations pursuant to this Section 22.1 will be
confidential and treated as compromise and settlement negotiations for
purposes of all rules and codes of evidence of applicable legislation and
jurisdictions.
22.2.
Governing Law; Jurisdiction
. These Terms will be governed by and construed in accordance with the
applicable laws of Schaffhausen, Switzerland. Each party irrevocably agrees
that any legal action, suit or proceeding arising out of or related to
these Terms must be brought solely and exclusively in, and will be subject
to the service of process and other applicable procedural rules of, the
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. In any
action or proceeding to enforce a party’s rights under these Terms, the
prevailing party will be entitled to recover its reasonable costs and
attorneys’ fees.
22.3.
Injunctive Relief; Enforcement
. Notwithstanding the provisions of Section 22.1 (Informal Resolution) and
22.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us
from seeking injunctive relief with respect to a violation of intellectual
property rights, confidentiality obligations or enforcement or recognition
of any award or order in any appropriate jurisdiction.
22.4.
Exclusion of UN Convention and UCITA
. The terms of the United Nations Convention on Contracts for the Sale of
Goods do not apply to these Terms. The Uniform Computer Information
Transactions Act (UCITA) will not apply to these Terms regardless of when
or where adopted.
23. Export Restrictions.
The Cloud Products are subject to export restrictions by the United States
government and may be subject to import restrictions by certain foreign
governments, and you agree to comply with all applicable export and import
laws and regulations in your access to, use of, and download of the Cloud
Products (or any part thereof). You shall not (and shall not allow any
third-party to) remove or export from the United States or allow the export
or re-export of any part of the Cloud Products or any direct product
thereof: (a) into (or to a national or resident of) any embargoed or
terrorist-supporting country; (b) to anyone on the U.S. Commerce
Department’s Denied Persons, Entity, or Unverified Lists or the U.S.
Treasury Department’s list of Specially Designated Nationals and
Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such
export or re-export is restricted or prohibited, or as to which the United
States government or any agency thereof requires an export license or other
governmental approval at the time of export or re-export without first
obtaining such license or approval; or (d) otherwise in violation of any
export or import restrictions, laws or regulations of any United States or
foreign agency or authority. You represent and warrant that (i) you are not
located in, under the control of, or a national or resident of any such
prohibited country and (ii) none of Your Data is controlled under the U.S.
International Traffic in Arms Regulations or similar Laws in other
jurisdictions. You also certify that you are not a Prohibited Person nor
owned, controlled by, or acting on behalf of a Prohibited Person. You agree
not to use or provide the Cloud Products for any prohibited end use,
including to support any nuclear, chemical, or biological weapons
proliferation, or missile technology, without the prior permission of the
United States government.
24. Changes to these Terms.
We may modify the terms and conditions of these Terms (including Our
Policies) from time to time, with notice to you in accordance with Section
26.1 (Notices) or by posting the modified Terms on our website. Together
with notice, we will specify the effective date of the modifications.
24.1.
No-Charge Products
.
You must accept the modifications to continue using the No-Charge Products.
If you object to the modifications, your exclusive remedy is to cease using
the No-Charge Products.
24.2.
Paid Subscriptions
. Except as otherwise indicated below, modifications to these Terms will
take effect at the next renewal of your Subscription Term and will
automatically apply as of the renewal date unless you elect not to renew
pursuant to Section 9.2 (Renewals). Notwithstanding the foregoing, in some
cases (e.g., to address compliance with Laws, or as necessary for new
features) we may specify that such modifications become effective during
your then-current Subscription Term. If the effective date of such
modifications is during your then-current Subscription Term and you object
to the modifications, then (as your exclusive remedy) you may terminate
your affected Orders upon notice to us, and we will refund you any fees you
have pre-paid for use of the affected Cloud Products for the terminated
portion of the applicable Subscription Term. To exercise this right, you
must provide us with notice of your objection and termination within thirty
(30) days of us providing notice of the modifications. For the avoidance of
doubt, any Order is subject to the version of these Terms in effect at the
time of the Order.
24.3.
Our Policies
. We may modify Our Policies to take effect during your then-current
Subscription Term in order to respond to changes in our products, our
business, or Laws. In this case, unless required by Laws, we agree not to
make modifications to Our Policies that, considered as a whole, would
substantially diminish our obligations during your then-current
Subscription Term. Modifications to Our Policies will take effect
automatically as of the effective date specified for the updated policies.
25. Changes to the Cloud Products.
You acknowledge that the Cloud Products are on-line, subscription-based
products, and that in order to provide improved customer experience we may
make changes to the Cloud Products, and we may update the applicable
Documentation accordingly. Subject to our obligation to provide Cloud
Products and Additional Services under existing Orders, we can discontinue
any Cloud Products, any Additional Services, or any portion or feature of
any Cloud Products for any reason at any time without liability to you.
26. General Provisions.
26.1.
Notices
. Any notice under these Terms must be given in writing. We may provide
notice to you through your Notification Email Address, your account or
in-product notifications. You agree that any electronic communication will
satisfy any applicable legal communication requirements, including that
such communications be in writing. Any notice to you will be deemed given
upon the first business day after we send it. You will provide notice to us
by post to viso.ai AG, Muehlenstrasse 26, 8200 Schaffhausen,
Switzerland. Your notices to us will be deemed given upon receipt.
26.2.
Force Majeure
. Neither party will be liable to the other for any delay or failure to
perform any obligation under these Terms (except for a failure to pay fees)
if the delay or failure is due to events which are beyond the reasonable
control of such party, such as a strike, blockade, war, act of terrorism,
riot, natural disaster, failure or diminishment of power or
telecommunications or data networks or services, or refusal of a license by
a government agency.
26.3.
Assignment
. You may not assign or transfer these Terms without our prior written
consent. As an exception to the foregoing, you may assign these Terms in
their entirety (including all Orders) to your successor resulting from a
merger, acquisition, or sale of all or substantially all of your assets or
voting securities, provided that you provide us with prompt written notice
of the assignment and the assignee agrees in writing to assume all of your
obligations under these Terms. Any attempt by you to transfer or assign
these Terms except as expressly authorized above will be null and void. We
may assign our rights and obligations under these Terms (in whole or in
part) without your consent. We may also permit our Affiliates, agents and
contractors to exercise our rights or perform our obligations under these
Terms, in which case we will remain responsible for their compliance with
these Terms. Subject to the foregoing, these Terms will inure to the
parties’ permitted successors and assigns.
26.4.
Government End Users
. Any United States federal, state, or local government customers are
subject to a separate agreement.
26.5.
Entire Agreement
. These Terms are the entire agreement between you and us relating to the
Cloud Products and any other subject matter covered by these Terms, and
supersede all prior or contemporaneous oral or written communications,
proposals and representations between you and us with respect to the Cloud
Products or any other subject matter covered by these Terms. No provision
of any purchase order or other business form employed by you will supersede
or supplement the terms and conditions of these Terms, and any such
document relating to these Terms will be for administrative purposes only
and will have no legal effect.
26.6.
Conflicts
. In event of any conflict between the main body of these Terms and either
Our Policies or Product-Specific Terms, Our Policies or Product-Specific
Terms (as applicable) will control with respect to their subject matter.
26.7.
Waivers; Modifications
. No failure or delay by the injured party to these Terms in exercising any
right, power or privilege hereunder will operate as a waiver thereof, nor
will any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any right, power or privilege hereunder
at law or equity. Except as set forth in Section 24 (Changes to these
Terms), any amendments or modifications to these Terms must be executed in
writing by an authorized representative of each party.
26.8.
Interpretation
. As used herein, “including” (and its variants) means “including without
limitation” (and its variants). Headings are for convenience only. If any
provision of these Terms is held to be void, invalid, unenforceable or
illegal, the other provisions will continue in full force and effect.
26.9.
Independent Contractors
. The parties are independent contractors. These Terms will not be
construed as constituting either party as a partner of the other or to
create any other form of legal association that would give either party the
express or implied right, power or authority to create any duty or
obligation of the other party.
27. Definitions.
Certain capitalized terms are defined in this Section 27, and others are
defined contextually in these Terms.
“Additional Services”
means Technical Account Manager (TAM) services, premier or priority support
or other services related to the Cloud Products we provide to you, as
identified in an Order. For the avoidance of doubt, Additional Services do
not include the standard level of support included in your subscription.
“Administrators”
mean the personnel designated by you who administer the Cloud Products to
End Users on your behalf.
“Affiliate”
means an entity which, directly or indirectly, owns or controls, is owned
or is controlled by or is under common ownership or control with a party,
where “control” means the power to direct the management or affairs of an
entity, and “ownership” means the beneficial ownership of greater than 50%
of the voting equity securities or other equivalent voting interests of the
entity.
“Cloud Products”
means our hosted or cloud-based solutions (currently designated as “Cloud”
deployments), including any client software we provide as part of the Cloud
Products.
“Documentation”
means our standard published documentation for the Cloud Products.
“End User”
means an individual you or an Affiliate permits or invites to use the Cloud
Products. For the avoidance of doubt: (a) individuals invited by your End
Users, (b) individuals under managed accounts, and (c) individuals
interacting with a Cloud Product as your customer are also considered End
Users.
“End User Account”
means an account established by you or an End User to enable the End User
to use or access a Cloud Product.
“Feedback”
means comments, questions, ideas, suggestions or other feedback relating to
the Cloud Products, Support or Additional Services.
“Laws”
means all applicable local, state, federal and international laws,
regulations and conventions, including those related to data privacy and
data transfer, international communications and the exportation of
technical or personal data.
“Notification Email Address”
means the email address(es) you used to register for a Cloud Product
account or otherwise sign up for a Cloud Product. It is your responsibility
to keep your email address(es) valid and current so that we are able to
send notices, statements, and other information to you.
“Order”
means viso.ai’s applicable online order page(s), flows, in-product screens
or other viso.ai-approved ordering document or process describing the
products and services you are ordering from us and, as applicable, their
permitted scope of use. As applicable, the Order will identify: (i) the
Cloud Products, (ii) the number of End Users, Subscription Term, domain(s)
associated with your use of Cloud Products, storage capacity or limits, or
other scope of use parameters and (iii) (for paid Orders) the amount or
rate you will be charged, the billing and renewal terms, applicable
currency, and form of payment. Orders may also include Additional Services
and No-Charge Products.
“Our Deliverables”
means any materials, deliverables, modifications, derivative works or
developments that we provide in connection with any Additional Services.
“Our Technology”
means the Cloud Products (including all No-Charge Products), Our
Deliverables, their “look and feel”, any and all related or underlying
technology and any modifications or derivative works of the foregoing,
including as they may incorporate Feedback.
“PCI DSS”
means the Payment Card Industry Data Security Standards.
“PO”
means a purchase order.
“Product-Specific Terms”
means additional terms that apply to certain Cloud Products and Additional
Services.
“Sensitive Personal Information” means any (i) special
categories of personal data enumerated in European Union Regulation
2016/679, Article 9(1) or any successor legislation; (ii) patient, medical
or other protected health information regulated by HIPAA; (iii) credit,
debit or other payment card data subject to PCI DSS; (iv) other personal
information subject to regulation or protection under specific laws such as
the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social
security numbers, driver’s license numbers or other government ID numbers;
or (vi) any data similar to the foregoing that is protected under foreign
or domestic laws or regulations.
“Subscription Term”
means your permitted subscription period for a Cloud Product, as set forth
in the applicable Order.
“Support”
means support for the Cloud Products. Your Support level will be specified
in the applicable Order.
“Training”
means viso.ai-provided training and certification services.
“Your Data”
means any data, content, code, video, images or other materials of any type
that you (including any of your End Users) submit to Cloud Products. In
this context, “submit” (and any similar term) includes submitting,
uploading, transmitting or otherwise making available Your Data to or
through the Cloud Products.
“Your Materials”
means your materials, systems, personnel or other resources.