PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE OR CLICKING "AGREE", CLIENT IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF CLIENT IS AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF THEIR EMPLOYER, THEN CLIENT REPRESENTS AND WARRANTS THAT THEY HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR EMPLOYER'S BEHALF.
This agreement is between View the Space, Inc., a Delaware corporation (VTS), and the client agreeing to these terms (Client).
1. LEASING ASSET MANAGEMENT AND PERFORMANCE SERVICE
This agreement provides Client access to and usage of an Internet based leasing asset management and performance software service as specified on an order (Service).
2. USE OF SERVICE
a. Data and Content Ownership.
If Client subscribes to a Leasing Office, Leasing Retail, Leasing Industrial, Leasing Limited or Video service under the order, then all data and content uploaded by Client or transmitted to the Service in their account (excluding videos created by VTS and uploaded to Client's account) remains the property of Client, as between VTS and Client (Client Data and Content). VTS will maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data and Content. Client grants VTS the right to use the Client Data and Content solely for purposes of performing under this agreement. During the term of this agreement, Client may export its Client Data and Content as allowed by the functionality within the Service or through the API (defined below).
If Client subscribes to a Leasing User service under the order, then all data and content uploaded by Client or transmitted to the Service in their account remains the property of Client, as between VTS and Client (Client Data and Content) excluding (i) data and content that are provided to Client from another client's account within the Service and (ii) videos created by VTS and uploaded to Client's account. VTS will maintain industry standard administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data and Content. Client grants VTS the right to use the Client Data and Content solely for purposes of performing under this agreement. During the term of this agreement, Client may export its Client Data and Content as allowed by the functionality within the Service or through the API (defined below).
b. Client Responsibilities. Client (i) must keep its passwords secure and confidential; (ii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify VTS promptly of any such unauthorized access; and (iii) may use the Service only in accordance with the online User Knowledge Base and applicable law.
c. API. VTS provides access to its application-programming interface (API) as part of the Service. Subject to the other terms of this agreement, VTS grants Client a non-exclusive, nontransferable, terminable license to interact with the API only for purposes of interacting with the Service as allowed by the API.
VTS may change or remove existing endpoints or fields in API results upon at least 30-day notice to Client, but VTS will use commercially reasonable efforts to support the previous version of the API for at least 6 months. VTS may add new endpoints or fields in API results without prior notice to Client.
The API is provided on an 'as is' basis. VTS has no liability to Client as a result of any change, temporary unavailability or suspension of access to the API.
d. Video Subscription Service. If Customer orders VTS' video subscription services under an order, then the following applies.
Customer must ensure that it has the necessary permissions from the property owner or manager to enter the property and film the video for purposes of this agreement; and follow the video production process in the VTS Video Subscription FAQ at www.vts.com/videofaq
The jointly approved videos created by VTS will be uploaded to the Service and may be viewed from within the Service. Any videos created by VTS are the proprietary property of VTS.
3. SERVICE LEVEL AGREEMENT & WARRANTY
a. Warranty. VTS warrants to Client: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month of 99% (excluding scheduled maintenance, force majeure, and outages that result from any Client or third party technology issues); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the Support may change but will not materially degrade during any paid term.
b. ACCESS RIGHTS DISCLAIMER. CLIENT UNDERSTANDS THAT IT SOLELY DECIDES WHICH USERS WILL HAVE ACCESS TO ITS ACCOUNT WITHIN THE SERVICE AND THE APPLICABLE PRIVILEGES AND ACCESS RIGHTS OF USERS (FOR EXAMPLE, VIEW, DATA EXPORT, DATA ENTRY, ETC.). VTS HAS NO CONTROL OVER SUCH DECISIONS OR THE OUTCOME OF SUCH DECISIONS.
c. GENERAL DISCLAIMER. VTS DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. WHILE VTS TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, VTS DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CLIENT UNDERSTANDS THAT THE SERVICE AND SOFTWARE MAY NOT BE ERROR FREE AND USE MAY BE INTERRUPTED.
Client must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Client is responsible for the payment of all applicable sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
5. MUTUAL CONFIDENTIALITY
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). VTS' Confidential Information includes without limitation the Service (including without limitation the Service user interface design and layout, and pricing information) and all non-public VTS video techniques, technology and processes.
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
6. VTS PROPERTY
a. Reservation of Rights. The software, workflow processes, API, user interface, designs, any videos created by VTS, and other technologies provided by VTS as part of the Service are the proprietary property of VTS and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with VTS. Client may not remove or modify any proprietary marking or restrictive legends in the Service or Software (defined below). VTS reserves all rights unless expressly granted in this agreement.
b. Restrictions. Client may not (i) sell, resell, rent or lease the Service or Software or use it in a service provider capacity; (ii) use the Service or Software to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service or Software; (iv) attempt to gain unauthorized access to the Service or Software or its related systems or networks; (v) reverse engineer the Service or Software; or (vi) access the Service or Software to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
c. Reporting Software. All reporting software provided by VTS as part of the Service (Software) are licensed to Customer as follows: VTS grants Customer a non-exclusive, non-transferable license during the term of the order, to internally operate and copy such Software, solely in connection with self-service reporting in Excel related to the Service.
d. Aggregate Data. During and after the term of this agreement, VTS may use and will own all non-identifiable data within the Service for purposes of enhancing the Service, analyzing usage trends, aggregated statistical analysis, technical support and other business purposes for such non-identifiable aggregate data.
7. TERM AND TERMINATION
a. Term. This agreement continues until all orders have terminated.
b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c. Return of Client Data and Content. Within 60-days after termination, upon request VTS will provide a flat file data export of Client Data and Content. After such 60-day period, VTS has no obligation to maintain the Client Data and Content and may destroy it.
d. Return VTS Property Upon Termination. Upon termination of this agreement for any reason, Client must pay VTS for any unpaid amounts, and destroy or return all property of VTS, including without limitation the Software. Upon VTS' request, Client will confirm in writing its compliance with this destruction or return requirement.
e. Suspension for Violations of Law. VTS may temporarily suspend the Service or remove the applicable Client Data and Content, or both, if it in good faith believes that, as part of using the Service, Client has violated a law. VTS will attempt to contact Client in advance.
8. LIABILITY LIMIT
VTS is not liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay loss of data, records or information, and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss. Except for VTS' indemnity obligations, VTS' total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Client within the 12-month period prior to the event that gave rise to the liability.
a. Defense of Third Party Claims. VTS will defend or settle any third party claim against Client to the extent that such claim alleges that VTS technology used to provide the Service or the Software violates a copyright, patent, trademark or other intellectual property right, if Client, promptly notifies VTS of the claim in writing, cooperates with VTS in the defense, and allows VTS to solely control the defense or settlement of the claim. Costs. VTS will pay infringement claim defense costs incurred as part of its obligations above, and VTS negotiated settlement amounts, and court awarded damages. Process. If such a claim appears likely, then VTS may modify the Service or Software, procure the necessary rights, or replace it with the functional equivalent. If VTS determines that none of these are reasonably available, then VTS may terminate the Service and Software and refund any prepaid and unused fees. Exclusions. VTS has no obligation for any claim arising from: VTS' compliance with Client's specifications; a combination of the Service or Software with other technology where the infringement would not occur but for the combination; use of Client Data and Content; or technology not provided by VTS. This section contains Client's exclusive remedies and VTS' sole liability for intellectual property infringement claims.
b. By Client. If a third-party claims against VTS that any part of the Client Data and Content infringes or violates that party's patent, copyright, trade secret, contract right or other right, Client will defend VTS against that claim at Client's expense and pay all costs, damages, and attorney's fees, that a court finally awards or that are included in a settlement approved by Client, provided that VTS: promptly notifies Client in writing of the claim; and allows Client to control, and cooperates with Client in, the defense and any related settlement.
10. GOVERNING LAW AND FORUM
This agreement is governed by the laws of the State of New York (without regard to conflicts of law principles) for any dispute between the parties arising out of or relating to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for New York County, New York and Client submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys' fees and costs from the other party. Each party hereby expressly waives the application of New York General Obligation Law Section 5-903 to any renewal of this agreement.
11. OTHER TERMS
a. Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Client is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, and no waiver is effective unless the party waiving the right signs a waiver in writing.
b. No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
c. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
f. No Additional Terms. VTS rejects additional or conflicting terms of any Client form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
h. Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Feedback. By submitting ideas, suggestions or feedback to VTS regarding the Service, Client agrees that such items submitted do not contain confidential or proprietary information; and Client hereby grants VTS an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.
j. Reference Account. Client allow VTS to use its name and logo in its marketing communications and materials, in accordance with Client's trademark guidelines and policies.