IF YOU SIGN UP FOR SUBSCRIPTION OR SERVICES, EITHER THROUGH THE WEBSITE OR BY SIGNING AN ORDER, YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS:
This Master Subscription and Services Agreement (“Agreement”) is by and between Vertex Software, LLC (“Vertex”) and the Customer, including its Affiliates (collectively "Customer") identified in the applicable Order.
1.1 These terms shall govern Customer’s access to and use of any Vertex software (“Software”) that is provided to Customer as set forth in the subscription order (“Subscription Order”) of which these terms form part. Pursuant to the terms of the Agreement, Vertex shall provide Customer with subscription-based access on a hosted basis, exercisable through Customer’s Users, to the Software (the provision of such access hereunder, the “Subscription Services”). Vertex shall provide such professional services (“Professional Services”) or on-site services (“On-Site Services”) as may be set forth in a statement of work hereunder (“Statement of Work”). “Services” means the Subscription Services and any On-Site Services and Professional Services associated with the Software. The Subscription Order and any Statement of Works are collectively defined as “Orders”. “Permitted Third Party” means any consultant, contractor, or agent hired to perform services for Customer. “Users” means individuals or a Permitted Third Party authorized to access and use the Subscription Services to whom Customer provides (or that Vertex provides at Customer’s request) access to Customer’s account. Users will be determined on a named user basis rather than on a concurrent user or shared user basis; provided that Customer may reassign User licenses (e.g., an employee changes positions or leaves Customer’s employ). All Users are required to have a user identification and password. Users may not be an individual of a company that competes with Vertex in offering subscriptions or services similar to Vertex’s offerings without Vertex’s prior written consent (“Vertex Competitor”). Customer shall remain responsible for all acts and omissions of Users that have access to the Customer’s account and their compliance with the terms hereof. “Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics of the Software, available at https://help.vertexvis.com/, including any updates thereto. Vertex reserves the right to update the Software or User licenses so that it remains current with the then current version of Software or User licenses available to Vertex’s customers generally.
1.2 Customer may add additional Users through the Software or by an Order during the Subscription Term at the pricing then in effect hereunder, prorated for the portion of the Subscription Term at the time the Users are added. Customer may not decrease the number of Users below the amount listed in the Subscription Order for the Subscription Term. Customer may decrease the number of Users in an Order, effective as of the next commencing renewal term, by executing a new Subscription Order or amendment at least thirty (30) days prior to such renewal term.
1.3 Any Affiliate of Customer may enter into an Order hereunder. For purposes of this Agreement, “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. By entering into an Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
2.0 Privacy and Data Security.
2.1 As between Vertex and Customer, Customer is, and will remain, the owner of all Customer’s and User’s files, designs, models, data sets, images, documents, or similar material or information inputted, edited, authored, generated, managed, submitted, transmitted to, stored, or otherwise used in connection with the Services by Customer or such User (“Customer Data”). For the purposes of this Agreement, “Personal Data” shall mean any information relating to an identified or identifiable natural person, unless applicable data protection law assigns a different meaning.
2.2 Customer hereby warrants that the Personal Data provided to Vertex by Customer meets all requirements of the European Union’s General Data Protection Regulation (GDPR) and any other data protection laws in any jurisdictions other than the U.S. from which Personal Data will be transferred to Vertex or the Subscription Services. Customer represents and warrants that the Customer has obtained all necessary consents from the Users to lawfully enable Vertex’s processing of Personal Data.
2.3 Customer shall provide the requisite notice to the data subject concerning the processing of Personal Data pursuant to this Agreement, including the collection, use, sharing, and transfer of data to jurisdiction(s) outside of the European Union/European Economic Area (“EU/EEA”) and which may not offer data protection requirements deemed adequate by the European Commission. Further, Customer warrants that it has in place a required transfer mechanism so as to legally transfer to Vertex personal data of data subjects outside of the EU/EEA.
2.5 Without in any way limiting the generality of the foregoing sections, each party will comply with applicable local, state, federal, and international law and regulations applicable to it hereunder, including without limitation those related to data privacy.
3.1 Any fees for the Services shall be paid in accordance with any billing frequency or terms stated in the applicable Order. Customer shall pay all fees no later than thirty (30) days from receipt of invoice. Vertex may impose a late payment charge equal to the lesser of (i) one and one-half percent (1.5%) per month or (ii) the maximum rate allowed by law, beginning thirty-one (31) days from receipt of invoice; and if Customer has not paid the invoice in full within forty-five (45) days from receipt of invoice, Vertex has the right to suspend Vertex’s provision of Services until full payment, including late payment charges, are paid by Customer.
3.2 Fees stated in an Order do not include applicable taxes. Customer agrees to bear and be responsible for the payment of all taxes, except taxes based upon Vertex’s income, including all sales, use, harmonized, rental receipt, personal property, custom duties or levies, federal, provincial or foreign taxes, or other taxes, which may be levied or assessed in connection with the Agreement. Customer shall pay such tax when due or reimburse Vertex as Vertex may request. If any tax is required to be paid by Vertex, the full amount of such tax will be billed to Customer separately, whether or not the Agreement is then in effect and promptly paid by Customer.
3.3 Unless otherwise specified in the applicable Order, Vertex may increase the fees for the Subscription Services and/or Services under this Agreement once in each twelve (12) month period upon thirty (30) days prior written notice to Customer.
4.0 Term and Termination.
4.1 Unless otherwise specified in the Order, the Services will: (a) begin on the start date in the Order and remain in effect for the period specified therein (the “Subscription Term”), and (b) automatically renew for the same period of time as the initial Subscription Term unless either party notifies the other in writing that it will not renew at least thirty (30) days prior to the expiration of the then current Subscription Term. Regardless of Customer’s notice of non-renewal, Customer will remain responsible for the fees associated with the then current Subscription Term.
4.2 Customer may terminate this Agreement without cause upon thirty (30) days prior written notice; provided, it shall remain responsible for the (a) Subscription Services fees associated with the then current Subscription Term, and (b) fees for any completed Professional or On-Site Services. Vertex may terminate this Agreement without cause upon sixty (60) days written notice, provided that in such case it shall refund all unearned Fees within thirty (30) days of the termination effective date.
4.3 Either party may terminate the Agreement, or any individual Order, for a material breach by the other party that is not cured within thirty (30) days after written notice of such material breach. The non-breaching party may elect to terminate the applicable Order only or the Agreement as a whole (and thus, all Orders).
4.4 Following the effective date of any termination, (i) Customer shall, and shall ensure that its Users and Permitted Third Parties, immediately cease all use of the Software and Services made available through Customer’s account; and (ii) each party shall pay the other party any fees due. Neither expiration nor termination of the Agreement will terminate those obligations and rights of the parties pursuant to provisions of the Agreement which by their express terms are intended to survive and such provisions will survive the expiration or termination of the Agreement. Without limiting the foregoing, the terms and conditions of Sections 4.4, 5, 6, 7, 9 and 10 will survive such termination or expiration of this Agreement.
5.1 “Confidential Information” means all information of the disclosing party disclosed to the receiving party that is marked or identified as confidential or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. Whether or not marked as such, Vertex’s Confidential Information shall include but not be limited to the Software, Services, and Orders, and Vertex’s pricing, business plans, marketing plans, technology information, technical information, product plans, product designs, business processes, application programming interfaces, any application programming interface keys, and security documents; and Customer’s Confidential Information shall include but not be limited to the Customer Data. Confidential Information may include Personal Data.
5.2 The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) shall not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall disclose the Confidential Information of the Disclosing Party only to the employees, Affiliate employees, outside lawyers, independent contractors, or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party shall protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
5.3 Subject to the provisions of Section 2:
5.3.1 The Receiving Party’s obligations under Section 5.2 above with respect to any Confidential Information of the Disclosing Party shall not apply to any information that the Receiving Party can document: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information; and
5.3.2 The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party, if legally permitted, notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
5.5 Neither party will (a) acquire any right in or assert any lien against the Confidential Information of the other, or (b) sell, assign, lease, or otherwise commercially exploit the Confidential Information (or any derivative works thereof) of the other party. Neither party may withhold the Confidential Information of the other party or refuse for any reason (including due to the other party’s actual or alleged breach of this Agreement) to promptly return to the other party its Confidential Information (including copies thereof) if requested to do so. Subject to the provisions of Section 2, upon expiration or termination of this Agreement and completion of a party’s obligations under this Agreement, each party will (except as otherwise provided in this Agreement) return or destroy, as the other party may direct, all Confidential Information of the other party, including any documentation in any medium that contains or refers to the other party’s Confidential Information. Subject to the foregoing confidentiality obligations, either party may retain copies of the Confidential Information of the other party to the extent required to document its performance or for compliance with applicable laws or regulations.
6.0 Ownership; Restrictions.
6.1 As between Vertex and Customer, Customer owns its Customer Data. Customer grants to Vertex, its Affiliates, and applicable contractors a royalty-free, fully-paid up, non-exclusive license to use and process Customer Data as necessary to provide the Services as provided in the Agreement (and as otherwise instructed by Customer or a User). With the exception of the license granted to Vertex to use the Customer Data as set forth herein, and subject to Section 6.2, Vertex acquires no right, title, or interest from Customer or its Users to Customer Data, including any intellectual property rights therein.
6.2 Vertex and its cloud hosting provider (“Cloud Hosting Provider”) owns the usage data derived from the operation of the Software and Services, including but not limited to, configurations, log data, and the performance results for the Services (“Usage Data”). Nothing herein shall be construed as prohibiting Vertex from utilizing the Usage Data to optimize and improve the Services or otherwise in connection with the operation of Vertex’s business; provided that if Vertex provides Usage Data to third parties, such Usage Data shall be de-identified and presented in the aggregate so that it will not disclose the identity of Customer or any User(s) to any third party.
6.3 Customer acknowledges and agrees that Vertex shall own all right, title, and interest in and to the Software and Services, including any modifications, derivative works, changes, expansions, or improvements, without any other or subordinate right whatsoever being held by Customer. Vertex shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Software or Services any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Customer or its Users related to the features, functionality, or operation of the Software or Services (“Feedback”). Vertex shall have no obligation to use Feedback, and Customer shall have no obligation to provide Feedback.
6.4 Customer may not, and will ensure its Users do not, and Customer will not permit any third party to: (i) use the Software or Subscription Services for any other purposes than its internal purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the Software or Subscription Services; (iii) modify, adapt, or create derivative works of the Software or Subscription Services; (iv) decompile, disassemble, or reverse-engineer the Software or Subscription Services or otherwise attempt to derive the Software source code, algorithms, methods, or techniques used or embodied in the Software or Subscription Services; (v) disclose to any third party the results of any benchmark tests or other evaluation of the Software or Subscription Services, or (viii) remove, alter, obscure, cover, or change any trademark, copyright or other proprietary notices, labels, or markings from or on the Software or Subscription Services. Permitted Third Parties may operate the Software or Subscription Services on Customer’s behalf under this Agreement, provided that: (a) Customer is responsible for ensuring that any such Permitted Third Party agrees to abide by and fully comply with the terms of this Agreement on the same basis as applicable to Customer; (b) such use is only to provide services for Customer; and (c) Customer remains fully liable for any and all acts or omissions by such Permitted Third Parties related to this Agreement.
7.0 Warranties and Disclaimers.
7.1 Vertex Obligations. Vertex warrants that during the term hereof: (i) the Subscription Services will perform materially in accordance with the applicable Documentation; (ii) Vertex will perform the Services in a professional and workmanlike manner; and (iii) Vertex will employ commercially reasonable measures to test the Subscription Services to detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful code or programs designed to negatively impact the operation or performance of the Subscription Services. In the event of any alleged breach of the warranties contained in clauses (i) and (ii), Vertex, at its sole option, will remediate the deficient Services to the extent Vertex shall deem reasonably necessary to restore the item to conformance with the warranty, and, in the event that Vertex is unable to provide the remedy set forth above within a commercially reasonable period of time, Vertex may refund to Customer any fees previously paid for the deficient Services. The remedies set forth in this paragraph are Customer’s sole and exclusive remedies, and Vertex's sole and exclusive liability, for breach of the warranties contained in clauses (i) and (ii). Vertex’s warranty obligations do not apply to the extent the nonconformity results from the use of the Subscription Services contrary to the terms of this Agreement or the instructions in any applicable Documentation.
7.2 Customer Acknowledgements. Customer accepts responsibility for selection of the Services to achieve Customer’s intended results. Customer is solely responsible for obtaining all necessary rights and consents to enter Customer Data into the Software and Subscription Services, and hereby warrants that providing Customer Data to Vertex under the Agreement will not violate or infringe the rights of any third party.
7.2 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND VERTEX, ITS LICENSORS, AND SERVICE PROVIDERS DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, AND VERTEX EXPRESSLY DISCLAIMS ANY AND ALL SUCH WARRANTIES.
8.0 Infringement Indemnity.
8.1 Vertex agrees to indemnify Customer against any losses or damages finally awarded against Customer incurred in connection with a third party claim alleging that Customer’s use of the Software infringes or misappropriates any U.S. patent as of the Effective Date of the Agreement, copyright, or trade secret of such third party, provided that Customer (a) provides prompt written notice of such claim to Vertex, (b) grants Vertex the sole right to defend such claim, and (c) provides to Vertex all reasonable assistance. In the event of a claim or threatened claim under this section 8.1 by a third party, Vertex may, at its sole option, (i) replace or modify the Software so that it is no longer infringing, (ii) obtain the right for Customer to continue using the Software, or (iii) immediately terminate the Agreement and provide a prorated refund. Notwithstanding the foregoing, Vertex will have no liability for any infringement claim of any kind to the extent that it results from: (1) modifications to the Software made by a party other than Vertex, (2) the combination of the Software or Services with other products, processes, or technologies (where the infringement would have been avoided but for such combination); (3) Customer’s use of the Service other than in accordance with the Documentation and this Agreement; or (4) any Customer Data.
8.2 This Section 8 states the entire liability of Vertex with respect to infringement arising from the Software, or any parts thereof, and Vertex shall have no additional liability with respect to any alleged or proven infringement.
9.0 Limitation of Liability.
9.1 SUBJECT TO SECTION 9.2, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE SOFTWARE, SERVICES, OR THE PERFORMANCE OR NONPERFORMANCE OF SERVICES OR ANY ORDER, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; (B) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA ARISING OUT OF CUSTOMER’S MISUSE OF, OR INABILITY TO USE, THE SOFTWARE OR SERVICE IN ACCORDANCE WITH THE DOCUMENTATION, OR THE PERFORMANCE OR NONPERFORMANCE OF VERTEX SOFTWARE OR SERVICES; AND (C) VERTEX’S MAXIMUM LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE FEES PAID BY CUSTOMER UNDER THE APPLICABLE ORDER TO WHICH THE CLAIM RELATES DURING THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
9.2 NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY SUCH PARTY’S GROSS NEGLIGENCE, (B) FRAUD OR FRAUDULENT MISREPRESENTATION, OR (C) ANY LIABILITY WHICH CANNOT LEGALLY BE EXCLUDED OR LIMITED.
10.0 Application Interface Programming
10.1 This Agreement shall govern the use of certain application programming interfaces, developer tools, and related features (“APIs”) that allows Customer to connect to and communicate with the Software. Such API is considered a part of the Services, and its use is subject to this Agreement. Customer may only access and use Vertex’s API for Customer’s internal business purposes, in order to create interoperability and integration between the Services and other products, services or systems that Customer may use internally. When using the API, Customer should follow Vertex’s relevant developer guidelines. Vertex reserves the right at any time to modify or discontinue, temporarily or permanently, Customer’s access to the API (or any part of it) with or without notice. The API is subject to changes and modifications, and Customer is solely responsible to ensure that Customer’s use of the API is compatible with the current version.
- To use the APIs, Customer must follow any registration or credentialing requirements established by Vertex. Customer must also follow any documentation or guidelines provided by Vertex related to API usage (“API Documentation”). Unless otherwise specified, the term “API” includes the related API Documentation.
- Vertex retains all right, title and interest in and to the APIs, including all copyrights therein. Subject to the provisions of this Agreement, Vertex grants Customer a world-wide, revocable, non-exclusive license to use the APIs to facilitate the interoperability of the Software and the Customer’s products, services, and add-ons (“Customer Applications”).
- Vertex may monitor Customer’s use of the APIs and, from time to time, may place limits on Customer’s access to the APIs (e.g., limits on numbers of calls). Vertex may also limit API calls or usage if Vertex believes that Customer’s use is in breach of this Agreement or may negatively affect the Software or its users.
- Vertex has no obligation to provide any maintenance or support for the APIs (or to users of Customer Applications) or to fix any errors or defects in the APIs. From time to time, Vertex may change the APIs or Software. Future versions of the APIs may not be compatible with Customer’s Applications developed using previous versions. Vertex will have no liability for the actions described in this paragraph.
11.1 Promotions. Customer grants Vertex the right to use Customer’s name, logo, trademarks, quotes, and/or trade names in press releases, product brochures, sales presentations, financial reports, webinars, and on its websites indicating that Customer is a customer of Vertex.
11.2 Notices. All notices, demands, requests, or other communications given under this Agreement shall be in writing and be given by personal delivery, certified mail, return receipt requested, confirmed electronic transmission, or nationally recognized overnight courier service to the addresses set forth above or as may subsequently in writing be requested.
11.3 Governing Law. This Agreement and disputes arising under this Agreement shall be governed solely by, and construed solely in accordance with, the laws of the State of Iowa, excluding conflicts of law principles. Any action or proceeding brought by either party in connection with this Agreement will be under the exclusive jurisdiction of the state and federal courts situated in Story County, Iowa, USA and the parties irrevocably waive their rights to jury trial with respect thereto.
11.4 Independent Contractor. The parties shall be independent contractors under this Agreement. Nothing contained herein shall be construed to constitute the parties as partners, joint venturers, or agents of the other.
11.5 Assignment. This Agreement may not be assigned by Customer (whether expressly or by operation of law) without the prior written consent of Vertex; except that no consent shall be required in connection with a merger, reorganization, or sale of all or substantially all of the Customer’s assets to which this Agreement relates. Customer may not assign this Agreement to a Vertex Competitor.
11.6 Government End User. Vertex provides the Software and Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Software or Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data-Commercial Items) and DFAR 227.7202-03 (Rights in Commercial Computer Software or Computer Software Documentation). If any portion of the Software or Services is deemed “non-commercial,” the Software and Services are licensed under the terms hereof and under the RESTRICTED RIGHTS set forth in the applicable FARs and DFARs (and the government’s use, duplication and disclosure rights are restricted as set forth therein). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Vertex to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
11.7 Miscellaneous. This Agreement represents the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings, including any non-disclosure agreements, between the parties with respect to the subject matter hereof. With the exception of any terms or conditions associated with additional Services or Users available for procurement via Vertex’s website or through Vertex’s Software that have been accepted or acknowledged (electronically or otherwise) by Customer or a User, no changes in, waivers, or additions to these terms and conditions will be recognized unless incorporated herein by amendment and signed by duly authorized representatives of both parties. The application of Customer’s general terms and conditions in any vendor acknowledgement or Customer’s other general purchasing conditions are hereby expressly excluded and objected to by Vertex. If any provision or portion of this Agreement is held to be unenforceable, such provision or portion shall be enforced to the maximum extent permissible consistent with the terms hereof, and the remainder of this Agreement shall continue in full force and effect. This Agreement is a collaborative drafting effort and the provisions of the Agreement will not be construed against a party as the purported drafter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the terms contained in the body of this Agreement (which may give priority to Orders for certain purposes); (2) the terms of the Orders; and (3) the terms of any other documents referenced in any of the foregoing.