This is a legally binding agreement between you, an individual or legal entity (“You,” or “Your”) and Xanadu Software Inc. d/b/a Vildiform (“Vildiform,” “We,” “Us,” or “Our”). You and Vildiform may be referred individually as a “party” and collectively as the “parties”. If You are an individual, You acknowledge that You are of least 18 years of age. If You agree to this Agreement on behalf of a legal entity, You represent that You have authority to bind that legal entity to this Agreement.
If you have not read the Agreement, do not understand or agree to be bound by the Agreement, or are not able to consent to be bound by the Agreement (e.g., if You are not old enough to enter into a binding legal contract), do not access or use the Platform. If You are accessing or using the Platform on behalf of an entity or business, You represent and warrant that You have the authority to bind such entity or business to the Agreement.
Account: means Your password-protected account through which You use the Services.
CCPA: means the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), and any related regulations or guidance provided by the California Attorney General. Terms defined in the CCPA, including personal information and business purposes, carry the same meaning in this Agreement.
Your Content and Data: means any electronic data, information, or material captured and stored by the Services as a result of Your use of the Service. Your Content and Data includes but is not limited to information pertaining to Leads that may contain individual, personally identifiable information (PII).
Intellectual Property Rights: means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
Lead: means a data record pertaining to an individual or entity, or other contact data and information.
Order Form: means a written document signed by You and Vildiform, or an electronic form submitted by You and accepted by Vildiform, which identifies the Vildiform Service(s) You have agreed to purchase and the corresponding fees.
Platform: means the overall Vildiform product, which includes Our online portal also referred to as Site, any script, code, or other technology, and any Services provided by Vildiform.
Third-Party Services: means services, materials, and information, in any form or medium, that are not proprietary to Vildiform, including any third-party: (a) documents, data, content or specifications; (b) software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
User: means the individual user login associated with an Account.
4. OWNERSHIP AND LIMITED LICENSE: Subject to Your acceptance and compliance with this Agreement and with Your payment of the fees as set forth in the Order Form, Vildiform hereby grants to You a limited, nonexclusive, non-transferable, non-sub-licensable, revocable right and license during the Term of this Agreement, to use the Platform as specified in the Order Form and solely and exclusively as contemplated by this Agreement. All rights not expressly granted under this Agreement are retained by Vildiform. You may access and use the Platform, including in operation with other software, hardware, systems, networks, and services, for Your business purposes so long as such access and use is consistent with the intended use of the Platform, as described in this Agreement.
The Platform, including all proprietary methods, systems, scripts and codes used to provide the Platform; all copies, modifications, enhancements, and derivative works thereof; and all intellectual property related thereto is protected by intellectual property and other proprietary rights and laws, including but not limited to U.S. copyright law, and is owned by Us and Our licensors. This Agreement confers no title or ownership in the Platform and is not a sale of any such rights. Other than as expressly set forth in this Agreement, no license or other rights in the Platform are granted to You, and all such rights are hereby expressly reserved. You shall not and shall not permit any third party to: (i) modify, copy, or create a derivative work of any part of the Platform; (ii) reverse engineer, disassemble, or decompile any of Platform; (iii) disclose the results of any benchmarking of the Services without the prior written consent of Vildiform; (iv) attempt to circumvent any usage tracking or usage limits or other use restrictions that are built into the Platform.
The Platform are provided solely for Your benefit and not, by implication or otherwise, to any parent, subsidiary, or affiliate. You may not pass through, license, resell, re-provision, or rent the Services (either for a fee or without charge), or allow third parties to use the Platform without the prior express written consent of Vildiform. In addition to any other remedies available to Vildiform, violation of this section may result in suspension, termination, or other restrictions on Your use of the Platform.
5. YOUR ACKNOWLEDGMENTS OF RESPONSIBILITIES: You represent and warrant that You will comply with all applicable local, state, national, and foreign laws, treaties, and regulations in connection with their use and access of the Platform, including, without limitation, Federal Trade Commission implementing regulations, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the CAN-SPAM Act of 2003, as amended, the Telephone Consumer Protection Act, the Fair Debt Collection Practices Act, the Federal Communications Act, the Amended Telemarketing Sale Rule (“ATSR”), 16 CFR 310 et seq., and those governing the National Do Not Call Registry, and all rules and regulations promulgated under any of the foregoing.
You represent and warrant that you will not use the Platform to violate any laws or regulations or infringe the intellectual property or other rights of third parties; (v) You will not transmit material that contains viruses or other harmful computer code or files in connection with Your use of the Platform nor will you use the Services in connection with any defamation, libel, slander, obscenity or violation of the rights of privacy or publicity, promotion of violence, hatred, or racial or religious intolerance, or any other offensive, harassing or illegal conduct. Although Validiform has no obligation to monitor Your account or Your use of the Platform, Validiform may do so and may remove Your content and data and prohibit Your use of the Platform if We believe, in Our sole discretion, that you are violating of the Terms of this Agreement.
You represent and warrant that for all activities that occur under Your account and will have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Your content and data and that You will use commercially reasonable efforts to prevent unauthorized access to or use of Your account and/or the Platform and agree that You will use best efforts to assist Vildiform in identifying and preventing any unauthorized use, copying, or disclosure of the Platform or any portions thereof or any of the algorithms or the logic contained therein and shall advise Vildiform immediately in the event You learn, or have reason to believe, that any party to whom You have given access to the Platform has violated, or intends to violate, the terms of this Agreement, and shall cooperate with Vildiform in seeking injunctive or other equitable relief in against any such party.
6. NONCOMPETE: Vildiform is not in the business of (nor do we intend to enter into) (i) buying, selling or aggregating leads, or (ii) retargeting consumers; both in a manner that would directly compete with You during the term of this Agreement. In the event of any change in this respect, We will notify you in writing via email, and You may terminate the Agreement upon written notice to Us, subject to Section 13 (Termination).
8. CONFIDENTIALITY: “Confidential Information” shall mean information of a disclosing party, whether commercial, financial, technical or otherwise, disclosed to a recipient party and whether disclosed orally, in documentary form, by demonstration or otherwise, which is contained in any form whatsoever (including without limitation data, drawings, films, documents and computer readable media), and which is marked or otherwise designated to show expressly or by necessary implication that it is confidential or proprietary to the disclosing party. In addition, with respect to Vildiform, all non-public aspects of Our structure, Our organization, and any and all aspects of the Platform are the Confidential Information of Vildiform.
The recipient party will not disclose Confidential Information of the disclosing party to any third party nor use any Confidential Information of the disclosing party, except as may be necessary to provide or use the Platform as described herein, including in the Privacy Policies, or with the disclosing party’s prior consent. Vildiform’s use and disclosure of data to provide the Platform as described herein and in compliance with the Privacy Policies shall not violate this Section 8 (Confidentiality), notwithstanding any contrary marking or designation of data as Confidential Information by You.
The recipient party will protect Confidential Information of the disclosing party from unauthorized disclosure, dissemination and publication outside the recipient party’s business organization not necessary to provide or use the Platform as described herein, including the Privacy Policies, by using the same degree of care as the recipient party uses to protect its own confidential or proprietary information of a similar nature, but not less than a reasonable degree of care. In addition, the recipient party shall limit the use of, and access to, Confidential Information only to the recipient party’s employees, agents, and contractors (i) who have a need-to-know to provide or use the Platform under this Agreement; (ii) who have been notified that such Confidential Information is confidential; and (iii) who are under binding obligations of confidentiality relating to the Confidential Information no less restrictive than those set forth herein. Recipient party agrees to reproduce disclosing party’s proprietary rights notices on any authorized copies in the same manner in which such notices were set forth in or on the original.
Notwithstanding anything to the contrary in the foregoing, Confidential Information shall not include (i) information that is in the public domain at the time of disclosure to the recipient party; (ii) information that becomes publicly known through no wrongful act of the recipient party; (iii) information that has been properly and lawfully disclosed to the recipient party by a third party without restriction on disclosure and without breach of any confidentiality obligation by said third party; (iv) information that has been independently developed by the recipient party as demonstrated by written records; or (v) information that is required to be disclosed pursuant to law or order of a court of competent jurisdiction, provided however that the recipient party notifies the disclosing party as soon as reasonably possible, but in any case in advance of any such disclosure, and cooperates with the disclosing party in any challenge to such disclosure.
Vildiform agrees to indemnify, defend, and hold harmless You, Your officers, directors, agents, and employees from and against any and all third-party Claims that You may incur as a result of or arising from (i) Vildiform’s breach of the Agreement, or (ii) a violation of any rights of a third party by Vildiform, including infringement of a third party’s intellectual property rights.
Each party’s indemnity obligations are contingent on the following:
1. the indemnifying party being promptly notified in writing of the Claim. Any delay in notification shall relieve the indemnifying party of its indemnification obligations to the extent that such delay actually prejudices the defense of such Claim;
- the indemnifying party having sole control of the defense and any negotiations for its settlement, except that the indemnified party shall not be required to make an admission of fault or liability or pay any amount not fully reimbursed by the indemnifying party;
- the indemnified party providing the indemnifying party with all reasonable assistance, information, and authority necessary to defend the Claim; and
- the indemnified party shall have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing.
If the indemnifying party refuses to undertake the defense of a Claim tendered by the indemnified party under this section or so delays in undertaking the defense of such a Claim as to reasonably risk prejudice to the indemnified party, the indemnified party shall be permitted to undertake the defense and/or settlement of such Claim itself, within its full discretion, and shall be entitled to full reimbursement and indemnification from the indemnifying party relating to the Claim if it is ultimately determined that such indemnifying party had an obligation of defense relating to such Claim under this section.
10. DISCLAIMERS: VILDIFORM’S PLATFORM AND TECHNOLOGY ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, VILDIFORM AND ITS AFFILIATES, AND ITS AND THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, THIRD-PARTY CONTRACTORS, THIRD-PARTY LICENSORS, AND SUCCESSORS EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY, TITLE, QUIET ENJOYMENT, UN-INTERRUPTION, SYSTEM INTEGRATION, AND/OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. VILDIFORM AND ITS AFFILIATES, AND ITS AND THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, THIRD-PARTY CONTRACTORS, THIRD-PARTY LICENSORS, AND SUCCESSORS MAKE NO WARRANTY ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, OR TIMELINESS OF OUR PLATFORM OR OUR TECHNOLOGY, THAT PROBLEMS WITH THE FOREGOING WILL BE CORRECTED, THAT VILDIFORM’S PLATFORM AND/OR ITS TECHNOLOGY ARE FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, THAT VILDIFORM’S PLATFORM OR ITS TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT OUR PLATFORM OR OUR TECHNOLOGY WILL MEET YOUR REQUIREMENTS.
11. LIMITATIONS OF LIABILITY:
- EXCEPT WITH RESPECT TO YOUR BREACH OF SECTION 4 (OWNERSHIP AND LIMITED LICENSE), IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, OR ITS OR THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, THIRD-PARTY CONTRACTORS, THIRD-PARTY LICENSORS, OR SUCCESSORS, BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, NOR FROM ANY DAMAGES ARISING FROM DELAY; LOSS OF GOODWILL; LOSS OF OR DAMAGE TO DATA; INTERRUPTION IN USE OR AVAILABILITY OF DATA; LOSS OF USE OF MONEY OR USE OF PRODUCTS; LOST PROFITS, REVENUE, OR SAVINGS (ACTUAL OR ANTICIPATED); OR OTHER ECONOMIC LOSS ENSUING FROM OR IN CONNECTION WITH OUR PLATFORM, OUR TECHNOLOGY, OR THIS AGREEMENT.
- EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS ARISING IN CONNECTION WITH ANY BREACH BY US OF THE AGREEMENT IS TO DISCONTINUE USING THE PLATFORM. IN THE EVENT THAT A COURT DETERMINES THAT THE PRECEDING SENTENCE IS UNENFORCEABLE, OR AS OTHERWISE ALLOWED BY LAW, OUR AGGREGATE LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT WILL NOT EXCEED THE SUM OF ALL AMOUNTS PAID OR PAYABLE BY YOU TO VILDIFORM IN THE TWELVE (12) MONTHS PRIOR TO THE TIME A CLAIM IS BROUGHT.
- UNLESS OTHERWISE ALLOWED BY LAW, YOU AND VIDIFORM AGREE THAT ANY CAUSE OF ACTION ARISE OUT OF OR RELATED TO OUR PLATFORM, TECHNOLOGY, OR THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
- THE LIMITATIONS OF LIABILITY UNDER THIS SECTION SHALL APPLY REGARDLESS OF WHETHER A CLAIM OR LIABILITY ARISES IN CONTRACT, EQUITY, TORT, OR OTHERWISE (INCLUDING BREACH OF WARRANTY, NEGLIGENCE, AND STRICT LIABILITY IN TORT); REGARDLESS OF WHETHER VILDIFORM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR LIABILITY; AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED UNDER THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. TO THE EXTENT THAT THE DISCLAIMERS AND/OR LIMITATIONS SET FORTH HEREIN ARE NOT PERMITTED UNDER APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH AND THE EXTENT OF OUR LIABILITY SHALL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
13. PAYMENT TERMS; TAXES: You agree to pay all fees as specified on Your Order Form. You will provide Vildiform with valid credit card or ACH information or with alternative document reasonably acceptable to Us. When You provide credit card or ACH information, You authorize Vildiform to charge such credit card or bank account for the Services provided under the Order Form for the initial term and any renewal terms. Fees shall be charged in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. Unless specified otherwise in the Order Form, Vildiform will invoice You for all regularly recurring fees, such as subscription fees, as well as, all usage-based fees. Vildiform may increase the subscription fees for any renewal terms. You will provide such information as reasonably required to determine whether Vildiform is obligated to collect any taxes from You. Fees do not include any foreign, federal, state, or local sales, use, or other similar taxes, however designated and/or levied. You shall pay, or reimburse Vildiform for, any and all such taxes imposed and paid by Vildiform.
Any amount owed by You which is not paid when due will bear interest at the rate of one percent (1%) per month or the maximum amount allowable by law, whichever is less. You shall pay Vildiform’s reasonable costs and expenses (including reasonable attorney fees) to enforce its rights under this Agreement. You must notify Vildiform in writing of any dispute of fees (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) business days following the date of invoicing, or Your right to dispute such fees is forever waived. All amounts payable under this Agreement shall be paid by You in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law). The parties shall seek to resolve any disputes expeditiously and in good faith.
14. TERMINATION: The term of this Agreement will commence on the date indicated on the Order Form, or the earlier of: the date You click I AGREE (or similarly labeled button) when signing up online; or the date you sign the Order Form and the Platform is made available to You and shall run for a full calendar month and shall automatically renew each month thereafter unless terminated earlier, by either Party, in accordance with this Agreement. Either Party may terminate this Agreement for any reason upon thirty (30) day’s written notice. Either Party may immediately terminate this Agreement for cause if there is a material breach of this Agreement by the other Party. In the event of any termination, You will cease access to the Platform, and remove any applicable scripts (or pixels or codes) from Your website(s), platform(s) or application.
Any payment obligations incurred prior to termination of the Agreement shall survive termination of the Agreement until paid. We shall not be liable to you or any third party for termination of Your access to the Platform, including but not limited to, any damages to You or any third party (or benefit to Vildiform) resulting from your failure to remove the applicable scripts (or pixels or codes).
16. GOVERNING LAW AND VENUE: This Agreement shall be construed in accordance with and governed by the laws of the United States and the State of Michigan, without regard to its conflict of law provisions and that any and all claims, causes of action and/or disputes, arising out of or relating to the use of the Platform. You hereby irrevocably consent to the exclusive jurisdiction of the state or federal courts having jurisdiction within the County of Kent, State of Michigan, or the U.S. District Court located in said state. You agree to waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
17. ASSIGNMENT: You may not assign, by operation of law or otherwise, any rights or delegate any duties under the Agreement to any third party without the prior written consent of Vildiform. Any purported assignment lacking such consent will be void at its inception. Vildiform may assign all or part of its rights and/or delegate all or part of its duties under the Agreement to any party and in its sole discretion.
18. NON-WAIVER: Any delay or failure to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. No waiver will have effect unless such waiver is set forth in writing and signed by the Party waiving such right; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default.
19. THIRD PARTY AND AFFILIATE WEBSITES: Vildiform has no control over, and no liability for any third-party websites or materials. Vildiform works with a number of third parties and affiliates whose internet sites may be linked with Vildiform’s website. Vildiform has no control over the content and performance of these third-party and affiliate websites, Vildiform makes no guarantees about the accuracy, currency, content, or quality of the information provided by such websites, and assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those sites. Similarly, from time to time in connection with Your use of the Vildiform website you may have access to content items including, but not limited to websites, that are owned by third-parties. You acknowledge and agree that Vildiform makes no guarantees about, and assumes no responsibility for, the accuracy, currency, content, quality, transmission, copyright compliance, legality or decency of any third-party content.
Likewise, Vildiform has no control over, and is not responsible for, the business practices or privacy policies of any third-party websites, or for the collection, use or disclosure of any information those websites may collect, even if those websites are owned or operated by affiliates.
20. ELECTRONIC COMMUNICATIONS: Vildiform can only give you the benefits of our Platform by conducting business through the internet; and therefore, You (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications that are provided to You electronically satisfy any legal requirement that such communications be in writing. Your consent to receive communications and do business electronically applies to all of your interactions and transactions with Us. You may withdraw your consent to receive communications electronically by contacting Us at (PLACE EMAIL ADDRESS HERE). If you withdraw consent, from that time forward, You must stop using the Platform. The withdrawal of Your consent will not affect the legal validity and enforceability of any obligations or any electronic communications provided or business transacted prior to Your withdrawal of consent. It is Your responsibility to provide a valid email and/or mailing address and to update such as may become necessary so as to continue to receive all communications without interruption.
21. NOTICES: We may give notice to you by email, by posting on the Platform, or other reasonable means. You must give notice to us in writing via email to (PLACE EMAIL ADDRESS HERE) or as otherwise expressly provided.
22. SURVIVAL: Any provisions regarding ownership, confidentiality and any licenses that by their terms survive termination, shall survive the expiration or termination of the Agreement for any reason.
956 3 Mile Road NW
Grand Rapids, MI 49544
Phone Number: (PLACE PHONE NUMBER HERE)
Email: (PLACE EMAIL ADDRESS HERE)