VAULLTIX GmbH Terms Of Service
Last updated: 01 September 2021
THESE TERMS OF SERVICE GOVERN YOUR ACCESS TO AND USE OF THE SERVICES OF VAULLTIX AND CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN YOU (EITHER AN INDIVIDUAL OR A COMPANY OR OTHER LEGAL ENTITY) AND VAULLTIX (THE “AGREEMENT”). YOU MAY ACCEPT THIS AGREEMENT EITHER BY CLICKING ON A BOX INDICATING YOUR ACCEPTANCE OR BY ACCESSING OR USING VAULLTIX’S SERVICES. BY ACCEPTING THIS AGREEMENT, YOU AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS. YOU MAY NOT ACCESS OR USE VAULLTIX’S SERVICES IF YOU ARE A DIRECT COMPETITOR OF VAULLTIX OR IF YOU ACCESS OR USE VAULLTIX’S SERVICES PRIMARILY TO EXAMINE THEIR FEATURES, EVALUATE THEIR FUNCTIONALITY, OR TO BENCHMARK OR OTHERWISE TEST THEIR PERFORMANCE, RATHER THAN CONDUCTING BONA FIDE TRANSACTIONS. IF YOU ARE ACCEPTING THIS AGREEMENT FOR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT FOR THAT COMPANY OR OTHER LEGAL ENTITY.
- VAULLTIX SERVICES.
- Secure Online Payment Portal Services. Vaulltix has developed a proprietary, secure online payment platform that allows authorized users to create transactions, issue invoices, and secure payment for their goods and services (the “Vaulltix Portal”). Vaulltix agrees to make the Vaulltix Portal available to You and to Your Permitted Users on a non-exclusive, non-transferable basis for Your lawful Access and Use, subject to all of the terms and conditions of this Agreement (the “Portal Services”).
- Support Services. Vaulltix’s agrees to provide support by telephone, email, or other forms of electronic communication, during Vaulltix’s normal business hours Monday through Friday, excluding holidays observed by Vaulltix, in connection with Your Access to and Use of the Portal Services (the “Support Services”). You may appoint, by written notice to Vaulltix, up to two (2) individuals to serve as support contacts between You and Vaulltix. The Support Services are subject to all of the terms and conditions of this Agreement.
- Development Services. The Support Services do not include any customization or development services. If You desire any customization or development services, contact Vaulltix in writing to determine whether such services are possible. Any customization or development services (“Development Services”) will only be performed by Vaulltix in its sole discretion pursuant to a Statement of Work (“SOW”) that has been executed by You and Vaulltix. Any Development Services shall be subject to all of the terms and conditions of this Agreement.
- Dispute Resolution Services. Vaulltix agrees to provide the dispute resolution services described in Section 7 of this Agreement, in connection with Your Access and Use of the Portal Services, subject to all of the terms and conditions of this Agreement (the “Dispute Resolution Services”).
- PROJECTS, INVOICES, AND DISBURSEMENTS.
- Projects. Once You have successfully completed the application process to use the Vaulltix Portal, You may enter Projects on the Vaulltix Portal, issue Project invitations to other third parties who have successfully completed the application process to use the Vaulltix Portal (each a “User”), accept invitations from other Users to participate in their Projects, and complete various other Project-related functions. You may fund Your Account with Vaulltix by wiring funds to one or more bank accounts or other financial institution accounts controlled by Vaulltix (each, an “Vaulltix Account”). Once a Project is entered into the Vaulltix Portal and the Project is funded, the Project becomes a valid Project. The Vaulltix Portal then allows a buyer on the Project (a “Buyer”) to point the contracted amount to a seller on the Project (a “Seller”). Those funds shall thereafter be dedicated to that Project and will not be released without Seller’s and Vaulltix’s consent, except pursuant to the Project dispute resolution procedures set forth in Section 7 of this Agreement. Any given Project may also involve the payment of commissions on transactions associated with the Project, and all such commissions will be paid and disbursed and specified by the parties to the Project.
- Invoices and Payment. A Seller will issue an Invoice to a Buyer using the Vaulltix Portal. If Buyer accepts Seller’s Invoice in whole or in part (and the Project has been funded), the Vaulltix Portal will automatically release the associated funds to Seller’s Account, less any Vaulltix Fees associated with the transaction and any commissions that are otherwise payable with respect to the Project. If Buyer, in good faith, disputes an Invoice, the parties shall use the Dispute resolution procedures set forth in Section 7 of this Agreement.
- Off-Portal Obligations. If You or another User on a Project desires to sell to a third party that has not completed the application process to use the Vaulltix Portal, such transaction may not be undertaken using the Vaulltix Portal unless You or such other User obtains a credit insurance policy or other written enforceable guarantee that guarantees the third party’s payment obligations with respect to the Project. The credit insurance policy or guarantee must be approved in advance in writing by Vaulltix in its sole discretion, must name Vaulltix as an additional insured or as a beneficiary of the credit insurance or guarantee, and must provide that payouts from the credit insurance or payments on the guarantee will only be made to Vaulltix to apply to the Project and not to any other party.
- Other Disbursements.If Your Account contains any funds that are not dedicated to a Project and are not otherwise subject to anticipated obligations or claims pursuant to this Agreement (“Excess Cash“) You may request that Vaulltix wire any amount of the Excess Cash to You. Upon receipt of Your request, Vaulltix will wire the requested amount of the Excess Cash to You pursuant to Your written instructions, less any applicable Vaulltix Fees.
- Vaulltix’s Powers. You hereby authorize and direct Vaulltix to receive, hold, use, pay, apply, and otherwise disburse all funds associated with Your Account in accordance with the terms and conditions of this Agreement. You acknowledge and agree that Vaulltix shall have the right (a) to act in reliance on any writing, instrument, notice, instruction, email transmission, fax transmission, other electronic communication, data or information entered into the Vaulltix Portal, or other document or communication, whether in hardcopy or electronic form (each, a “Communication”) which Vaulltix believes, in its sole opinion, to be genuine; (b) to assume the validity, substance, completeness, and accuracy of any Communication required to be delivered, or actually delivered, to Vaulltix pursuant to this Agreement; and (c) to assume that any Person purporting to submit any Communication to Vaulltix in connection with this Agreement has been duly authorized to do so. You agree to indemnify, defend, and hold harmless Vaulltix and its directors, managers, officers, employees, and agents from, against, and for any and all Claims arising from or relating to such conduct.
- Limitations on Vaulltix’s Duties and Liability.
- No Implied Duties. Vaulltix’s duties, responsibilities, and obligations shall be limited to those expressly set forth in this Agreement, and no other duties, responsibilities, or obligations shall be inferred or implied. Vaulltix shall not be subject to, nor required to comply with, any other agreement between the interested parties, or to comply with any direction or instruction from any interested party, other than those set forth herein or delivered in compliance with this Agreement. Vaulltix shall not be required to, and shall not, expend or risk any of its own funds or assets or otherwise incur any financial liability in the performance of any of its duties under this Agreement.
- Standard of Care. Vaulltix shall not have any liability to You or any other Person for any act or omission taken in good faith pursuant to this Agreement or with respect to any claim, demand, loss, or damage allegedly made or suffered by You, except as a direct result of willful misconduct or gross negligence by Vaulltix.
- Events Beyond Vaulltix’s Control. Without limiting the generality of Section 12.5 of this Agreement, Vaulltix shall not incur any liability for not performing any act or fulfilling any duty, obligation, or responsibility under this Agreement by reason of any occurrence beyond the control of Vaulltix (including, but not limited to, any act or provision of any present or future Law or regulation or governmental authority, any act of God or war, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).
- Orders. If at any time Vaulltix is served with any judicial or administrative order, judgment, decree, writ, or other form of judicial or administrative process that in any way relates to Your Account or any Vaulltix Account (including but not limited to orders of attachment or garnishment or other forms of levies or injunctions or stays relating to the transfer of such funds), You authorize Vaulltix to comply therewith in any manner as it deems appropriate (but shall give prompt notice thereof to You and all other interested parties). If Vaulltix complies with such judicial or administrative order, judgment, decree, writ or other form of judicial or administrative process, Vaulltix shall not be liable to You, to any other interested party, or to any other Person, even if such order, judgment, decree, writ, or other process is modified or vacated or otherwise determined to have been without legal force or effect.
- FEES AND PAYMENT FOR VAULLTIX SERVICES.
- Vaulltix Fees. In consideration for Your ability to use the Vaulltix Services, You agree to pay all of the fees set forth in Vaulltix’s then-current Schedule of Fees, available for review at www.vaulltix.ch/pricing and is hereby incorporated into this Agreement by reference (collectively and individually, the “Vaulltix Fees”). Vaulltix may amend the Schedule of Fees at any time in its sole discretion, and such amended Schedule of Fees shall apply to all Projects You or Your Permitted Users enter into the Vaulltix Portal and all Projects invitations that You or You Permitted Users accept after You receive notice of the changes to the Schedule of Fees.
- Payment. You agree that Vaulltix may deduct from Your Account all Vaulltix Fees that become due and payable pursuant to this Agreement and that Vaulltix may make such deductions from Your Account at the same time that the transactions, actions, or events that give rise to the Vaulltix Fees occur or any time thereafter. If Your Account does not contain sufficient funds to pay the Vaulltix Fees or otherwise discharge Your monetary obligations to Vaulltix under this Agreement, Vaulltix will issue an invoice to You for the balance due, and You shall, within ten (10) Business Days after receiving Vaulltix’s invoice, wire sufficient funds to Vaulltix to pay the balance due. Any amounts that You fail to pay in a timely manner shall bear interest at the rate of two percent (2%) per month until paid in full.
- Taxes. All Vaulltix Fees are exclusive of any and all applicable taxes. You agree to pay, and shall defend, indemnify, and hold Vaulltix harmless from, any and all applicable federal, state, local, and foreign sales, use, value-added, alternative, add-on minimum, transfer, property, franchise, license, excise, import, export, registration, and other taxes, duties, tariffs, and fees that are associated with Your Access to and Use of the Vaulltix Portal and the Vaulltix Services and any other exercise of Your rights under this Agreement (“Taxes”), but excluding any taxes on Vaulltix’s net income, capital, or gross receipts. If Vaulltix is required to remit any Taxes to any governmental authority on Your behalf or account, You agree that Vaulltix may deduct all such amounts from Your Account five (5) Business Days after Vaulltix provides You written notice and documentation of such remittance.
- Suspension of Services for Non-Payment. If You fail to pay in a timely manner all Vaulltix Fees and other amounts due and owing to Vaulltix pursuant to this Agreement, Vaulltix may suspend Your and Your Permitted User’s Access to and Use of the Vaulltix Portal and the Vaulltix Services until You pay Vaulltix in full.
- OTHER OBLIGATIONS AND LIMITATIONS.
- Availability of Portal Services. Vaulltix will use commercially reasonable efforts to make the Portal Services available for Access and Use seven (7) days a week, twenty-four (24) hours a day, except for Scheduled Maintenance, emergency maintenance, and other outages and interruptions beyond Vaulltix’s reasonable control, including without limitation internet outages. “Scheduled Maintenance” means any maintenance scheduled by Vaulltix at least forty-eight (48) hours in advance of such maintenance. Vaulltix will make reasonable efforts to notify You in advance of any Scheduled Maintenance and to perform Scheduled Maintenance during historically low use hours based on average use by You and other authorized users of the Vaulltix Portal.
- Provision of Vaulltix Services. Vaulltix will provide Access to and Use of the Vaulltix Portal and the Vaulltix Services only in compliance with the applicable Laws of the United States, the States, and their political subdivisions. Vaulltix will maintain the Vaulltix System at its own data center or one or more third-party data-centers. Vaulltix in its sole discretion may provide any or all of the Vaulltix Services through one or more Vaulltix Affiliates.
- Protection of Your Data. Vaulltix will use commercially reasonable efforts to protect Your Data, including maintaining appropriate administrative, technical, and physical safeguards to protect the confidentiality, integrity, and security of Your Data. As used in this Agreement, “Your Data” means all electronic data, documents, and information that You or Your Permitted Users submit to the Vaulltix Portal or otherwise submit to Vaulltix pursuant to this Agreement, other than data, documents, or information originally obtained from Vaulltix. Vaulltix will make commercially reasonable efforts to create and protect back-up copies of Your Data on the Vaulltix System. Vaulltix shall have no liability or duty of indemnification, however, related to any loss or corruption of Your Data. Without limiting the generality of the foregoing sentence, this limitation of liability eliminates any duty or liability on the part of Vaulltix relating to any loss or corruption of Your Data resulting in whole or in part from third-party software or networking goods or services or from actions or events outside of Vaulltix’s reasonable control. You have the ability to save or e-print Your transactional data (invoices and statements) for additional backup security, and You agree to do so on a regular basis.
- Your System. You must procure and maintain, at Your sole cost and expense, all of the software, hardware, other devices and equipment, and internet connectivity that are necessary and appropriate for You and Your Permitted Users to Access and Use the Vaulltix Portal and other Vaulltix Services (“Your System”).
- Your Access and Security Measures.
- Security Measures. You agree to take, and to require Your Permitted Users to take, reasonable and appropriate security measures in Accessing and using the Vaulltix Portal and the Portal Services, including but not limited to: (a) granting user and password permissions only to Permitted Users, (b) requiring Permitted Users to use strong passwords, (c) setting system options to require passwords to be changed at regular intervals, (d) deactivating password authorization within twenty-four (24) hours after any Person discontinues employment with You or otherwise ceases to be a Permitted User; (e) requiring ongoing scans for Malicious Software on all computers and other devices that are connected to the Vaulltix Portal or are otherwise used for the Portal Services, and (f) requiring password-protected screen lockouts after periods of inactivity.
- Permitted Users. You agree to maintain the confidentiality of, and prevent the unauthorized use of, each user name and password that You and Your Permitted Users use to Access the Vaulltix Portal and otherwise Use the Vaulltix Services, including entering into appropriate agreements with all of Your Permitted Users. You will immediately notify Vaulltix if You determine, or have reason to believe, that any unauthorized Person has gained Access to any of Your user names and passwords or gained Access to the Vaulltix Portal.
- Security of Your Systems. With respect to Your System and Your Access to and Use of the Vaulltix Portal and other Vaulltix Services, You must ensure that:
- None of Your personal computers (PCs), servers, or other devices that communicate with the Vaulltix Portal are affected by any form of malicious software including, but not limited to, key loggers, rootkits, network scanners, packet sniffers, viruses, or spyware (“Malicious Software”).
- All Your PCs, servers, and other devices are routinely checked for Malicious Software using every reasonable measure, including but not limited to automated scanning software.
- All Access to and use of the Vaulltix Portal by You and any Permitted User will be performed without any malicious intent and without circumventing any security measures.
- All root certificates are kept up to date on all PCs, servers, and other devices in Your System.
- You will provide industry-standard firewall security and other industry-standard security measures to prevent any unauthorized Access to Your system and devices that access the Vaulltix Portal.
- Reliance on Instructions. Without limiting the generality of Section 2.4(c), You authorize Vaulltix to rely upon any information or instructions set forth in any data transmission using assigned user names, passwords, and other login credentials, without making further investigation or inquiry, and regardless of the actual identity of the Person transmitting the same. Use of the assigned user names, passwords, and other login credentials, whether or not authorized by You, shall be solely Your responsibility and risk. You agree to indemnify, defend, and hold harmless Vaulltix and its directors, managers, officers, employees, and agents from, against, and for any and all Claims arising from or relating to any use, misuse, or unauthorized use of Your usernames, passwords, and other login credentials.
- Restrictions on Your Access and Use. You and Your Permitted Users shall not: (a) sell, resell, assign, sub-license, rent, lease, or loan any Access to or Use of the Vaulltix Portal, the Vaulltix System, or the Vaulltix Services, or attempt to do so; (b) Copy, make derivative works of, or reverse engineer, in whole or in part, the Vaulltix Portal, the Vaulltix System, or the Vaulltix Services; (c) enter into the Vaulltix Portal or otherwise transmit to Vaulltix any data, material, or other content that infringes, misappropriates, dilutes, or otherwise violates any third-party Intellectual Property or other rights or is defamatory, tortious, or unlawful; (d) Access or Use the Vaulltix Services for any unlawful purpose or in any unlawful manner; (e) interfere or attempt to interfere with the features, functions, or operation of the Vaulltix Portal, the Vaulltix System, or the Vaulltix Services; (f) use any of the Vaulltix Marks or (g) gain, attempt to gain, or encourage or assist any other Person to gain or attempt to gain any unauthorized Access to or Use of the Vaulltix Portal, the Vaulltix System, the Vaulltix Services, or any third-party data stored on the Vaulltix System.
- PROPRIETARY RIGHTS.
- Vaulltix’s Intellectual Property. You acknowledge and agree that Vaulltix exclusively owns all right, title, and interest in and to the Vaulltix Portal, the Vaulltix System, the Vaulltix Marks, and any and all other Intellectual Property used in promoting or providing the Vaulltix Services (“Vaulltix Intellectual Property”). Also, subject to the permissions granted in this Agreement, Vaulltix reserves all right, title, and interest in and to the Vaulltix Services. You acknowledge that You have no rights under this Agreement other than those expressly set forth in this Agreement.
- Your Data. As between You and Vaulltix, You shall own all right, title, and interest in and to Your Data. Notwithstanding the foregoing, however, Vaulltix shall have a limited, worldwide right and license (a) to use Your Data to perform the Vaulltix Services, and (b) to use non-personally identifiable information from Your Data, whether aggregated or non-aggregated with that of other Users, for purposes of optimizing the Portal Services and other Services and for marketing and promoting the Portal Services and other Services. You agree to defend, indemnify, and hold harmless Vaulltix and its directors, managers, officers, employees, and agents from, against, and for any and all Claims arising from or otherwise relating to Your Data; any inaccuracies in Your Data; Your failure to obtain any necessary consents or authorizations from Your Sellers, customers, and other business contacts; or Your actual or alleged infringement, misappropriation, dilution, or other violation of any Intellectual Property.
- Your Input on Vaulltix Services. All right, title, and interest, including without limitation Intellectual Property rights, in and to any and all ideas, suggestions, requests, comments, materials, and other input that You or Your Permitted Users provide to Vaulltix with respect to the Vaulltix Portal, the Vaulltix System, or the Vaulltix Services (“Input”) shall be owned exclusively by Vaulltix. You agree that, without further compensation other than reimbursement of Your actual, reasonable out-of-pocket third party costs that Vaulltix approves in writing, You will take such actions and execute such assignments, instruments, and other documents as Vaulltix may request, to document, confirm, perfect, protect, and enforce Vaulltix’s ownership of and exclusive rights in and to such Input.
- CONFIDENTIAL INFORMATION.
- Protection. Each Party agrees to keep strictly confidential all confidential and proprietary information disclosed to it by the other Party pursuant to this Agreement (“Confidential Information”), to protect the confidentiality thereof in the same manner and to the same extent that it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information), and to use Confidential Information of the other Party solely for proper performance of this Agreement. Confidential Information will be protected under this Section 6.1 only if it is: (a) provided in written or electronic form or in the form of tangible products or materials; and (b) clearly and prominently identified in writing as Confidential Information of the Party at the time of its disclosure. Notwithstanding the foregoing, all non-public information about the Vaulltix Portal, the Vaulltix Services, and the terms and conditions of this Agreement shall be the Confidential Information of Vaulltix. In addition, all of Your Data will be deemed Your Confidential Information, except as otherwise provided in this Agreement, and except that Vaulltix may process, transmit to or through any country in the world, transfer, and otherwise disclose to third parties any of Your Confidential Information as is necessary and appropriate for Vaulltix to perform its obligations under this Agreement.
- Exclusions. Except as otherwise provided in this Agreement, the obligations of Section 6.1 shall not apply to any Confidential Information that the receiving Party can demonstrate by contemporaneous written records: (a) was generally known to the public before its receipt from the disclosing Party, (b) becomes generally known to the public, without action on the part of the receiving Party, (c) was already known by the receiving Party, (d) was received by the receiving Party without any obligation of confidentiality from a Person (other than the disclosing Party) that lawfully possesses and has the right to disclose such information, or (e) was disclosed in accordance with the prior written consent of the disclosing Party.
- Injunctive Relief. Each Party agrees that the unauthorized use, transfer, or disclosure of any Confidential Information of the other Party will cause irreparable injury and render any monetary damages incurred with respect thereto inadequate. In the event of any unauthorized use, transfer, or disclosure, or any threatened unauthorized use, transfer, or disclosure, of any Confidential Information of the other Party, such Party shall be entitled, in addition to any other rights or remedies, at law or equity, as such Party may otherwise have, to equitable relief to protect its interests therein, including, but not limited to, temporary, preliminary, and permanent injunctive relief, without the necessity of establishing actual damages or irreparable harm or posting a bond or other security.
- Notification. Each Party agrees to notify the other Party promptly in writing if any unauthorized access, disclosure, distribution, possession, transfer, reproduction, or use of any Confidential Information of the other Party is found or suspected. Each Party also agrees (a) to notify the other Party promptly in writing if any request is made by or through any governmental or quasi-governmental authority, or under any rules or procedures thereof, that would call for the disclosure of any of such other Party’s Confidential Information, unless notification is prohibited by law, in which case all reasonable, lawful efforts will be made to limit and protect the Confidential Information required to be disclosed; and (b) provide reasonable and appropriate assistance to the other Party, at such other Party’s written request and expense, to limit or preclude the required disclosure.
- PROJECT DISPUTE RESOLUTION.
- Negotiation Phase. If any dispute, claim, question, or disagreement arises between You and any other User(s) relating to an Invoice or other matter, including without limitation the Parties’ payment or other obligations under the Client Agreement (a “Dispute”), the parties shall notify Vaulltix. Vaulltix will release any non-disputed funds to the appropriate party or parties and will notify the parties that they have five (5) Business Days to negotiate with one another to try to settle the Dispute (the “Negotiation Phase”). The parties shall supply all relevant and supporting documentation to each other. You and the other User(s) shall use Your best efforts to reach a just and equitable settlement of the Dispute. If the Dispute is settled during the Negotiation Phase, Vaulltix will release the disputed funds in accordance with the settlement, within five (5) Business Days after all interested parties confirm the terms of the settlement. If the parties to the Dispute do not settle it during the Negotiation Phase, Vaulltix will arbitrate the Dispute as provided in Section 7.2.
- Binding Arbitration. If a Dispute is not resolved during the Negotiation Phase, You and the other User(s) will have five (5) Business Days after the end of the Negotiation Phase to submit any and all pertinent and supporting documentation, and written arguments to Vaulltix about the Dispute. An interested party’s failure to submit pertinent documentation to Vaulltix on a timely basis shall be grounds for Vaulltix ruling summarily in favor of the other interested party or parties. Vaulltix will examine the documentation and arguments and render a decision on the Dispute (the “Decision”) no later than twenty-one (21) Business Days after the deadline for submitting documentation and arguments. After the Decision is rendered, any interested party will have five (5) Business Days to object to the Decision by notifying Vaulltix of any clear errors in the Decision, such as clerical or mathematical errors, and any other interested party will have five (5) additional Business Days thereafter to respond. If no interested party submits a timely objection, the Decision shall become final and binding, and Vaulltix will release the disputed funds as provided in the Decision. If any interested party submits a timely objection, Vaulltix will consider such objection and any responses thereto and may amend or reaffirm its original Decision. The amended or reaffirmed Decision shall then become final and binding, and Vaulltix will release the disputed funds as provided in the amended or reaffirmed Decision. If the Account of any interested party against whom a final Decision is rendered lacks sufficient funds to implement the Decision, the interested party shall promptly wire sufficient funds to an Vaulltix Account to implement the Decision. Vaulltix may consult with legal counsel on any matter relating to the Dispute, and Vaulltix shall not incur any liability in acting in good faith in accordance with all reasonable advice from such counsel. Vaulltix’s arbitration fees and legal counsel costs shall be deducted from the Account of or invoiced to the losing party or parties or, if the Decision is split, in proportion to the split of the disputed funds.
- Federal Arbitration Act. The final Decisions rendered by Vaulltix on any Dispute shall enjoy the protections of and be subject to the provisions of the Federal Arbitration Act, 9 U.S.C. § 1, et seq., as amended.
- WARRANTIES; DISCLAIMERS; AND LIMITATION OF LIABILITY.
- Mutual Warranties. Each Party represents and warrants that (a) this Agreement has been duly and validly accepted and delivered and constitutes the legal, valid, and binding obligation of such Party; (b) such Party has full authority and ability to execute, deliver, and perform this Agreement; (c) such Party’s execution, delivery, and performance of this Agreement will not conflict with or violate (i) any provision of any Law to which such Party is subject, or (ii) any agreement or other instrument applicable to such Party or binding upon its assets or properties; and (d) the person who accepts this Agreement on behalf of such Party has carefully read and understands this entire Agreement and is duly authorized to accept it for such Party.
- Vaulltix Limited Warranty. Subject to Your compliance with the Technical Requirements and other provisions of this Agreement, Vaulltix warrants that the Portal Services will operate in substantial compliance with Vaulltix’s published descriptions of them, which Vaulltix may modify from time to time in its sole discretion (the “Limited Warranty”). If You report any nonconformity with the Limited Warranty to Vaulltix, Vaulltix will, at its sole discretion and expense, use reasonable efforts to remedy the nonconformity. THIS REMEDY SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM FOR BREACH OF THE LIMITED WARRANTY. VAULLTIX DOES NOT REPRESENT OR WARRANT THAT: (A) THE VAULLTIX PORTAL OR ANY OF THE VAULLTIX SERVICES WILL MEET ALL OF YOUR REQUIREMENTS, NEEDS, DESIRES, OR EXPECTATIONS, (B) ACCESS TO OR USE OF THE VAULLTIX PORTAL OR THE VAULLTIX SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, (C) ALL ERRORS IN THE VAULLTIX PORTAL AND VAULLTIX SERVICES WILL BE CORRECTED, (D) THERE WILL BE NO DEFECTS OR MALICIOUS CODE IN THE VAULLTIX PORTAL, OR (E) THE VAULLTIX PORTAL WILL BE COMPATIBLE WITH ALL OF THE COMPONENTS OF YOUR SYSTEM, YOUR FILES, OR YOUR BROWSER OR OTHER WEBSITE ACCESSING PROGRAMS. For example, without limiting the generality of the foregoing statements, Access to the Vaulltix Portal may from time to time be unavailable, delayed, limited, or slowed due to errors in the Vaulltix Portal or circumstances beyond Vaulltix’s control. In such events, You may be unable to create Projects, accept Project invitations, or otherwise conduct business on the Vaulltix Portal, or Your instructions may not be promptly executed by Vaulltix or the Vaulltix Portal. If any such event causes You or any other Person to suffer any loss, Vaulltix will have no responsibility or liability to You or such Person for such loss.
- DISCLAIMER OF OTHER WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.2, ALL SERVICES PROVIDED BY VAULLTIX PURSUANT TO THIS AGREEMENT ARE PROVIDED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES, IF ANY, OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE (EVEN IF VAULLTIX HAS BEEN INFORMED OF SUCH PURPOSE), ARE HEREBY EXCLUDED IN THEIR ENTIRETY.
- LIMITATION OF LIABILITY. IN NO EVENT WILL VAULLTIX BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF BUSINESS, PROFITS, OR GOODWILL, EVEN IF VAULLTIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF THE FORM OF ACTION, AND WHETHER SUCH ACTION OR CLAIMS ARE BASED ON BREACH OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, REMEDY, OR RECOVERY. FURTHERMORE, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, VAULLTIX’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION OR THE NUMBER OF CLAIMS, AND WHETHER SUCH ACTION(S) OR CLAIMS ARE BASED ON BREACH OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY, REMEDY, OR RECOVERY, SHALL NOT EXCEED THE FEES ACTUALLY PAID TO VAULLTIX PURSUANT TO THIS AGREEMENT FOR THE SERVICES THAT GAVE RISE TO THE CLAIM(S) OR CAUSE(S) OF ACTION. THE PARTIES AGREE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 8 ARE A MATERIAL PART OF THE CONSIDERATION EXCHANGED BY THE PARTIES, WHICH LIMITATIONS SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- MUTUAL INDEMNIFICATION.
- Vaulltix’s Indemnity Obligations. Subject to the terms and conditions of this Agreement, including without limitation Sections 8.4 and 9.3, Vaulltix agrees to defend, indemnify, and hold You, Your Permitted Users, and Your directors, officers, managers, employees, and agents harmless from and against any action brought in the United States by any third party, to the extent such action is based on any claim or allegation that the Vaulltix Portal or any Vaulltix Services, as provided and used in accordance with this Agreement, infringe any United States patent issued on or before the Effective Date, any Berne convention country copyright, or any United States trade secret (a “Covered Claim”). Subject to the limitations contained in Section 8.4, Vaulltix shall pay all settlements, damages, and costs finally awarded thereon, including without limitation attorneys’ fees. Vaulltix shall have no obligation or liability, however, with respect to any claim arising out of or relating to: (a) any Access to or Use of the Vaulltix Portal or any Vaulltix Services other than as provided in this Agreement, (b) any Access to or Use of the Vaulltix Portal or any Vaulltix Services in combination with any software, data or other content, or equipment not supplied by Vaulltix, if and to the extent that the infringement arises out of such combination, (c) any use of Your Intellectual Property or Your Data, (d) any information that You or Your Permitted Users provide to Vaulltix for use in performing any Vaulltix Services; or (e) Your or Your Permitted User’s misconduct or negligence. THIS SECTION 9.1 STATES THE ENTIRE OBLIGATION AND LIABILITY OF VAULLTIX AND YOUR EXCLUSIVE REMEDY RELATING TO THE INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
- Your Indemnity Obligations. Except for Covered Claims, You shall defend, indemnify, and hold harmless Vaulltix and its directors, officers, managers, employees, and agents from, against, and for any and all losses, costs, damages, expenses (including, without limitation, reasonable attorneys’ fees, expert witness fees, court costs, and other expenses), fines, suits, proceedings, claims, demands, rights of recovery, or actions of any kind or nature (whether based on tort, contract, trade, regulatory or other Law) arising from or otherwise relating to, Your and Your Permitted User’s Access to and Use of the Vaulltix Portal and any Vaulltix Services, including without limitation any claims resulting from, or otherwise arising out of: (a) any breach of Your warranties in this Agreement, (b) any other breach of this Agreement by You or Your Permitted Users; (c) Your or Your Permitted User’s Access to or Use of the Vaulltix Portal or any Vaulltix Services (i) other than as provided in this Agreement, (ii) in combination with any software, data or other content, or equipment not supplied by Vaulltix, if and to the extent that the claim arises out of such combination; (c) the use of Your Data; (d) Your Input; (e) You or Your Permitted User’s misconduct or negligence; or (f) any other matters as to which You have agreed to indemnify Vaulltix.
- Indemnity Procedures. If You or Vaulltix seeks indemnification under this Agreement (the “Indemnitee“), the Indemnitee shall (a) notify the other Party (the “Indemnitor“) in writing within ten (10) Business Days after Indemnitee receives notice of a claim for which there is a right of indemnification under this Agreement (an “Indemnified Claim”), and (b) provide Indemnitor all reasonable assistance in defending against or settling the Indemnified Claim, at Indemnitor’s sole expense. If Indemnitee fails to comply with his/her/its notice or other obligations under this Section 9.3 with respect to any Indemnified Claim, Indemnitor at his/her sole option shall be relieved of his/her obligations as to that Indemnified Claim, but only if and to the extent that Indemnitor suffers actual prejudice from such failure. Indemnitee shall not settle or compromise any Indemnified Claim without the express, written consent of Indemnitor, provided that it is not unreasonably withheld, conditioned, or delayed. Indemnitee shall have the right to participate, at his/her/its sole expense, in the defense of the Indemnified Claim through counsel of his/her/its own choosing, provided that Indemnitor’s counsel shall control the defense. You agree that if You fail to comply with Your indemnity obligations under this Agreement, Vaulltix shall have the right, in its sole discretion, to place a hold on funds in Your Account sufficient for Vaulltix itself to discharge Your indemnity obligations and to deduct and use those funds from Your Account as necessary to discharge those obligations.
- TERM, TERMINATION, AND CLOSING YOUR ACCOUNT.
- Term. This Agreement shall become effective on the date that You accept it (the “Effective Date”) and shall continue in force and effect until it is terminated in accordance with this Section 10.
- Termination for Cause.
- Breach of Agreement. A Party may terminate this Agreement by written notice to the other Party, if such other Party breaches any warranty or other provision of this Agreement. Termination for breach of Section 5 (Proprietary Rights), 6 (Confidentiality), 12.1 (Non-assignment), or 12.6 (Compliance with Laws) shall be effective upon written notice. In all other cases, termination shall be effective thirty (30) calendar days after written notice of termination to the breaching Party, if the breach has not been cured within such period, unless the termination if for non-payment of an Vaulltix invoice, in which case termination shall be effective five (5) Business Days after written notice of termination, if You have not cured the non-payment (with interest) within such period.
- Other Grounds. A Party may terminate this Agreement by written notice to the other Party, if (a) such other Party becomes insolvent, using either a balance sheet test or the inability of such Party to pay its debts as they mature, (b) such other Party makes a general assignment for the benefit of creditors; or (c) a petition or application to appoint a receiver is filed against such other Party by any third party, and it is not resolved in such other Party’s favor within ninety (90) days of its filing. Vaulltix may also terminate this Agreement upon written notice if it is alleged by any governmental or quasi-governmental authority that it is or would be unlawful to provide or to continue to provide You or Your Permitted Users any of the Vaulltix Services.
- Termination for Convenience. In addition to the termination rights provided in Section 10.1, either Party may terminate this Agreement for convenience upon thirty (30) days’ written notice.
- Your Obligations on Termination. On termination of this Agreement, You and Your Permitted Users shall immediately cease all Access to and Use of the Vaulltix Portal and other Vaulltix Services, except that, if You are not in breach of this Agreement, You and Your Permitted Users may continue to Access and Use the Vaulltix Portal and other Vaulltix Services for a period of thirty (30) calendar days solely to close out any existing Projects. Termination of this Agreement shall also accelerate and make due and payable to Vaulltix all amounts to which Vaulltix is entitled under this Agreement. You agree that, on termination of this Agreement for Your breach of this Agreement, Vaulltix may promptly terminate Your Access to and Use of the Vaulltix Portal and other Vaulltix Services.
- Vaulltix’s Obligations With Respect to Termination and the Closing of Your Account.
- Account Funds. Upon termination of this Agreement, and subject to the payment of any and all Vaulltix Fees, other amounts owed to Vaulltix, amounts owed to other Users, and commissions owed to other Users or third parties, and further subject to Vaulltix`s right of setoff and recoupment with respect to any claims that Vaulltix has against You. Vaulltix will wire to You any non-disputed funds remaining in Your Account, provided that You supply Vaulltix with written wire instructions. Notwithstanding the foregoing, however, Vaulltix shall have no obligation to wire or otherwise release any funds remaining in Your account if they are subject to any Dispute, any invoice, and Vaulltix claim, any third-party claim, or subject to any Lax, hold, order, action, or other proceeding of any governmental authority or quasi-government authority. Any and all such funds shall only be disbursed, wired, or otherwise released to You after any and all issues regarding them are finally resolved.
- Your Data. Upon written request received by Vaulltix within thirty (30) days after the effective date of termination, Vaulltix will make Your Data available to You for download in a standard format. After such thirty (30) day period, Vaulltix shall have no obligation to retain any of Your Data and may delete it from the Vaulltix System.
- Return of Confidential Information. Upon termination of this Agreement, the receiving Party shall return all Confidential Information to the disclosing Party (or, at the disclosing Party’s option, destroy it and provide a certification of such destruction signed by an officer of the receiving Party), and shall not be entitled to make or retain any Copies, except as required to comply with applicable Laws or as necessary to enforce the receiving Party’s rights under this Agreement. If the receiving Party retains any Copies, it shall provide written notice to the disclosing Party of the Copies retained and the applicable legal requirements or other necessity for such retention. The requirements of Section 6 shall continue to apply to all Copies retained pursuant to this Section 10.5.
- Preservation of Claims. All payment obligations and all claims that arose in favor of the Parties or either of them under this Agreement before termination of this Agreement shall survive such termination.
- Assumption or Rejection in Bankruptcy. If any proceeding under the U.S. Bankruptcy Code (“Bankruptcy Code”) is filed by or against You, You must assume or reject this Agreement within sixty (60) days after such proceeding is commenced. If You do not assume this Agreement within that period, this Agreement shall immediately terminate, unless Vaulltix gives written notice of non-termination to You within five (5) days. You agree that any fees or other amounts that become due to Vaulltix after any bankruptcy proceeding is filed by or against You shall be treated as administrative expenses under Section 503 of the Bankruptcy Code and shall be immediately payable to Vaulltix when due, without the need for an application for payment in the bankruptcy court.
- DEFINITIONS. In addition to terms defined elsewhere in this Agreement, and words having well-known technical or trade meanings, the following terms shall have these meanings when used in this Agreement:“Access” means any occurrence in which You or any of Your Permitted Users logs onto or otherwise accesses the Vaulltix Portal or any other Vaulltix Services.
“Account” means the amount of funds, in U.S. Dollars or in any other currency accepted and approved by Vaulltix in its sole and ongoing discretion, that You or another User has legally wired or caused to be wired to an Vaulltix Account, less the amounts of (a) all funds used and disbursed pursuant to this Agreement or Vaulltix’s agreement with the other User, (b) all Fees that are deducted for the Vaulltix Services, and (c) all offset and recoupment amounts to which Vaulltix is entitled for claims it may have against the account owner.
“Affiliate” means any Person directly or indirectly controlling, controlled by, or under common control with another Person. As used herein, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to the Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the Person’s management and policies, whether through the ownership of voting securities or by contract or otherwise.
“Vaulltix Marks” means any and all Marks that Vaulltix uses to advertise, promote, or provide any of the Vaulltix Services, including without limitation the Mark VAULLTIX.
“Vaulltix Services” means, individually and collectively, the Portal Services, the Support Services, and the Dispute Resolution Services, and any other services that Vaulltix provides in relation to them.
“Vaulltix System” means any and all of the hardware, software, and other technology and assets that Vaulltix uses to provide the Vaulltix Portal or otherwise perform the Vaulltix Services.
“Claim” means any and all losses, costs, damages, expenses (including, without limitation, reasonable attorneys’ fees, expert witness fees, court costs, and other expenses), fines, suits, proceedings, claims, demands, rights of recovery, or actions of any kind or nature (whether based on tort, contract, trade, regulatory, or other Law).
“Copy” means any copy or other reproduction, in whole or in part, of the specified item or information, whether made by mechanical or any other means.
“Intellectual Property” means patents, patent rights, patent applications, and continuing (continuation, divisional, or continuation-in-part) applications, re-issues, extensions, renewals, and re-examinations thereof and patents issued thereon; registered and unregistered trademarks and service marks, trade names, and domain names (“Marks”); registered and unregistered copyrights; trade secrets and inventions, whether patentable or unpatentable; any and all other intellectual, industrial, or proprietary rights as now exist or hereafter come into existence; and pending applications for and registrations of any of the foregoing; whether arising under the Laws of the United States or Laws of any other state, country, or jurisdiction in the world.
“Invoice” means any invoice or other request for payment that You, Your Permitted Users, or other Users generate using the Vaulltix Portal in connection with a Project.
“Laws” means any and all applicable federal, state, foreign, and international laws, rules, regulations, codes, statutes, ordinances, requirements, plans, treaties, compacts, proclamations, conventions, orders, and all official interpretations of any and all of the foregoing.
“Party” means You or Vaulltix individually, and “Parties” means You and Vaulltix collectively. For avoidance of doubt, non-capitalized references to a “party” or “parties” contained in this Agreement may or may not include You or Vaulltix depending on the context in which the term is used.
“Permitted User” means an individual employed or otherwise retained by You who receives Access to the Vaulltix Portal or any of Vaulltix’s other Vaulltix Services in compliance with this Agreement.
“Person” means any individual, corporation, partnership, trust, limited liability company, association, organization, governmental or quasi-governmental authority, or other legal entity of any kind or nature.
“Project” means any transaction or proposed transaction, between You and one or more Sellers, Buyers, customers, or other third parties, that You or Your Permitted Users enter into the Vaulltix Portal.
“Services” means Portal Services, Support Services, Development Services, Dispute Resolution Services, or any other services that Vaulltix undertakes to perform in connection with any of those services.
“Technical Requirements” means Your obligations under Section 4.5(a), (b), and (c).
“Use” means any use of (a) the features or functionality of the Vaulltix Portal, the Vaulltix System, or the Vaulltix Services, (b) the Vaulltix Intellectual Property, or (c) any Vaulltix proprietary or Confidential Information.
“You” and “Your” means the individual accepting this Agreement for him/herself or the company or other legal entity on whose behalf the individual is accepting this Agreement.
- GENERAL PROVISIONS.
- Assignment. You shall not assign, transfer, pledge, or encumber any of Your rights or delegate any of Your duties or obligations under this Agreement, without the prior written consent of Vaulltix, provided that shall consent is not unreasonably withheld. Any attempt at such an assignment, transfer, pledge, encumbrance, or delegation shall be null and void. For purposes of this Section 12.1, a change in control, whether through merger, sale of stock, or otherwise, shall be deemed an assignment for these purposes. Subject to the foregoing limitations, this Agreement shall be binding upon and inure to the benefit of the Parties’ successors and permitted assigns.
- Relationship of Parties. The relationship of the Parties under this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed (a) to constitute the Parties as partners, joint venturers, co-owners, or participants in any joint or common undertaking, (b) to authorize either Party to accept service of process on behalf of the other Party, or (c) to allow either Party to create or assume any obligation not expressly provided by this Agreement on behalf of the other Party for any purpose. Neither of the Parties and none of their officers, directors, employees, representatives, agents, or Affiliates shall be deemed to be the employee, agent, representative, or Affiliate of the other Party for any purpose.
- Waiver. No failure by a Party to insist on the strict performance of any covenant, duty, agreement, or condition of this Agreement, or to exercise any right or remedy available for a breach thereof, shall constitute a waiver of any such breach or any other covenant, agreement, term, or condition. Either Party may, but shall be under no obligation to, waive any of its rights or any conditions to its obligations hereunder, or any duty, obligation, or covenant of the other Party. No waiver shall be effective unless made in writing and signed by a duly authorized representative of the waiving Party. No waiver shall affect or alter the remainder of this Agreement, but each and every other covenant, agreement, term, and condition hereof shall continue in full force and effect.
- Notices. All notices, authorizations, and requests with respect to this Agreement shall be deemed given: (a) upon receipt, for notices delivered by email or in person; (b) five days after being deposited in the Switzerland mail, postage prepaid, certified or registered, return-receipt requested; or (c) one day after being sent by nationally recognized overnight courier, charges prepaid; in all events to the Party’s last known address.
- Force Majeure. No failure to perform by a Party shall be considered a breach of this Agreement if such failure to perform results from beyond the reasonable control of the Party alleged to be in default, including, but not limited to, labor disputes, civil disturbances, actions or non-actions of governmental authorities or Sellers, epidemics, war, embargoes, severe weather, fire, earthquakes, widespread Internet outage, acts of God, or default of a common carrier. This provision shall not apply to Your payment obligations.
- Legal Compliance. You shall comply with the Anit-Money Laundering Act as amended from time to time, and all other Laws applicable to the exercise of Your rights and the performance of Your obligations under this Agreement, including without limitation Switzerland export and technology Laws.
- Remedies. Except as otherwise expressly set forth in this Agreement, no right or remedy conferred on or reserved to Vaulltix is exclusive of any other right or remedy, at law or in equity, but each such remedy shall be cumulative of every other right or remedy now or hereafter existing. None of the provisions of this Agreement are for the benefit of, or are enforceable by, any creditors or customers of a Party or any other third party.
- Governing Law. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of Switzerland, without reference to its conflicts-of-laws rules. Switzerland shall have exclusive jurisdiction and venue over any and all disputes arising under or relating to this Agreement, and You irrevocably consent to the personal jurisdiction and venue of such courts. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety and does not apply to this Agreement. In any dispute arising under or relating to this Agreement, the prevailing Party shall be entitled to recover its costs, expenses, and reasonable attorneys’ fees. THE PARTIES HEREBY AGREE THAT NEITHER WILL REQUEST A JURY FOR ANY DISPUTE ARISING UNDER OR RELATING TO THESE TERMS AND HEREBY IRREVOCABLY WAIVE ANY AND ALL SUCH RIGHTS TO A JURY TRIAL.
- Severability. If any provision in this Agreement is determined by a court of competent jurisdiction to be void, invalid, unenforceable, or illegal, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its violability, invalidity, unenforceability or illegality, and the other provisions of this Agreement shall remain unaffected and continue in full force.
- Survival of Provisions. The provisions of this Agreement that by their nature extend beyond the term of this Agreement, whether or not expressly stated herein, will survive and remain in effect until all obligations of this Agreement are satisfied, including without limitation Sections 2.4, 2.5, 3, 4.5(d), 4.6, 5-12.
- Entire Agreement. These Terms of Service constitute the entire understanding and agreement between the Parties with respect to subject matter hereof and supersede all prior written and oral communications, agreements, proposals, representations, warranties, statements, negotiations, and understandings.