Viewpoint Co-Management Legal Documents

This Master Services Agreement (“Master Agreement”) is binding as of the effective date of the most recent valid Order incorporating this Master Agreement, by reference, and is made by and between the customer identified in the Order (“Customer”), and ViewPoint CoManagement LLC, a Nevada limited liability company (“ViewPoint”). This Master Agreement, including all exhibits, attachments, schedules, order forms, and statements of work, if any, constitute the entire agreement between the Parties on this subject matter and are referred to collectively as the “Agreement”. Customer and ViewPoint are referred to herein collectively as the “Parties,” and each as a “Party".

1. DEFINITIONS

1.1 “Account” means an access point to the Application provided to an individual Authorized User.
1.2 “Application” means the subscription-based software-as-a-service proprietary technology provided by ViewPoint, that includes, without limitation, any applications, upgrades, enhancements, new releases, integrations, and custom functionality built pursuant to any SOW or Order.
1.3 “Authorized User” means an employee, contractor, or agent of Customer who is authorized to use the Services and may access the Application by using a unique username and password under an Account.
1.4 “Contractors” means independent contractors and consultants who are not ViewPoint’s competitors.
1.5 “Customer Data” means content, materials, software, data, or other information that is imported into the Application by Customer, Customer’s Authorized Users, or third parties on ‎behalf of Customer.‎
1.6 “Initial Term” means the first subscription term as described in the initial Order.
1.7 “Order” means any Order Form signed by the Parties that references this Master Agreement and lists the Services to be provided by ViewPoint and the fees to be paid by Customer.
1.8 “Professional Services” means the services: (i) as described in the Order or an applicable Statement of Work (“Statement of Work” or “SOW”) that may include, without limitation, training, implementation, data conversion, integrations, consulting services, and customized enhancements to the Application, and (ii) that are not included as part of the standard level of ViewPoint Support or implementation.
1.9 “Services” means all of the services provided by ViewPoint listed in an Order, an applicable SOW, and this Master Agreement, including (i) subscription-based access to and use of the ‎Application over the internet, (ii) the Professional Services, (iii) Support, (iv) implementation services, and (v) any other services agreed to ‎between ViewPoint and Customer.
1.10 “Support” means the standard level of customer support for the Application that ViewPoint provides to all its customers and to Customer, which is not included as part of the Professional Services.

2. SERVICES

2.1 Application Access and Use. ViewPoint will provide the Services to Customer in accordance with the Agreement. During the Term, and subject to Customer’s payment of all applicable Fees (defined below), ViewPoint hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Application solely for the purposes described in the Agreement. Any access, use, or attempted access or use of the Application other ‎than as expressly permitted in the Agreement is a material breach of the Agreement. All rights not expressly granted to Customer under this Agreement are reserved by ViewPoint.
2.2 Accounts. To access and use the Application, Customer’s Authorized Users must register for an Account. Use of and access to the Application, in whole or in part, is permitted only to Authorized Users designated by Customer. Accounts provided to Customer’s Authorized Users are Customer’s Accounts. Customer shall require that all Authorized Users keep individual user identification and login information strictly confidential and not share such information with any unauthorized person or with another Authorized User. Customer is responsible for ensuring the confidentiality of its Authorized Users’ Account login information and is fully responsible for Authorized User activities that occur thereby. Although ViewPoint has no obligation to monitor Customer’s and its Authorized Users’ access and use of the Application, ViewPoint may do so and may prohibit any use of the Application it believes may be (or alleged to be) in violation of the Agreement.
2.3 Account Access. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, mobile devices including tablets, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer acknowledges that while the security of Customer’s Accounts will be maintained by logical authentication mechanisms, it is possible for Customer’s Accounts to be accessed by unauthorized third parties during communication between Customer and ViewPoint using the internet, other network communications, facilities, telephone, or other electronic means. Customer shall notify ViewPoint immediately if Customer suspects or becomes aware of any unauthorized use of the Services or if an Authorized User’s username or password is lost or stolen. Customer and its Authorized Users will maintain the security and confidentiality of, and be responsible for maintaining their Equipment, usernames and passwords (including but not limited to administrative user passwords). ViewPoint shall not be responsible for any unauthorized access to Customer’s, or its Authorized Users’, account(s) because of circumstances described in this paragraph, or because of the failure of any Equipment. Customer may permit its Contractors to serve as Authorized Users, provided Customer remains responsible for compliance by each Contractor to all the terms and conditions of this Agreement. Customer represents that any use of the Services by a Contractor is for Customer’s sole benefit.
2.4 General Restrictions. Customer will not, nor permit any Authorized User or any unauthorized third party to, directly or indirectly: (i) reverse engineer, decompile, decipher, disassemble, or copy the Application, (ii) use, copy, or attempt to discover the source code, object code, or their underlying structure, ideas, know-how, trade secrets, algorithms, or Confidential Information relevant to the Application, or any software, documentation, or data related to the Services; (iii) modify, translate, or create derivative works of the Services (except to the extent ViewPoint expressly permits or authorizes within the Services); (iv) reproduce, license, sell, rent, lease, outsource, sublicense, or use the Services for time sharing, service bureau purposes, or otherwise for the benefit of any unauthorized third party; (v) remove or obscure any identification, proprietary, copyright or other notices in the Application (including any reports or data printed from the Application); (vi) “frame” or “mirror” any of ViewPoint’s content which forms part of the ViewPoint Application, or incorporate the Services into any other offering (whether software as a service or otherwise); (vii) use the Services in any manner that is harmful, infringing, threatening, abusive, tortious, harassing, defamatory, vulgar, obscene, libelous, invasive of another’s privacy or right of publicity, or otherwise violates the rights of another or does not comply with applicable law; (viii) interfere with or disrupt, disable, damage, impair, or overburden the Application, including, without limitation, by transmitting viruses or other malicious code, aesthetic disruptions or distortions, or using the Application to spam others; and (ix) use or disclose Confidential Information relating to the Application for use other than for the purposes in this Agreement or that is competitive with ViewPoint. Customer is fully responsible for the acts and omissions of its Authorized Users, including their use of the Services, Customer Data, and Accounts with or without Customer’s knowledge or consent.
2.5 Modification to Services. ViewPoint may modify or update the Services from time to time without notice. ViewPoint will use commercially reasonable efforts to notify Customer in advance if a change is material, other than those changes which enhance or extend any features or functionality of the Services. ViewPoint will provide the hosting services for the Application (“Hosting Services”) through a third-party hosting facility and may update the content, functionality and user interface of the Hosting Services from time to time in its sole discretion and in accordance with this Agreement.
2.6 Internet Access. To use the Application, Customer must have or obtain access to the internet. Customer agrees that ViewPoint is not providing Customer with access to the internet to use the Services and that Customer is solely responsible for obtaining and maintaining such internet access and for providing all equipment necessary to obtain and maintain such internet access. ViewPoint does not and cannot control the flow of data to or from ViewPoint’s network, designated hosting facility and/or other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the internet (or portions thereof). ViewPoint agrees to use commercially reasonable efforts to take any actions it deems appropriate to remedy and avoid such events. However, ViewPoint cannot guarantee that such events will not occur. Accordingly, ViewPoint disclaims any and all liability resulting from or related to such events.
2.7 Terms of Service; Privacy Policy; Business Associate Agreement. Customer agrees to allow ViewPoint to require Authorized Users to agree to the Application terms of service (found at legal.vpcomanage.com/tos) and ViewPoint’s privacy policy (found at legal.vpcomanage.com/privacypolicy) prior to providing access to the Application, which are incorporated herein by reference. Customer agrees that it shall not interfere with or otherwise obstruct any such process by ViewPoint. In the event of any conflict between the provisions of this Master Agreement and the provisions of the Application terms of service or ViewPoint’s privacy policy, the applicable provisions in this Master Agreement shall supersede and control. The Parties agree to be bound by the terms of the Business Associate Agreement found at legal.vpcomanage.com/baa.
2.8 Customer Marks; ViewPoint Marketing Uses. Customer hereby grants ViewPoint a non-exclusive, royalty-free, fully-paid, non-sublicensable (except to ViewPoint’s contractors performing services on its behalf) license during the Term to (i) use, copy, display and reproduce the Customer’s name, trademarks, and logos (“Customer Marks”), and (ii) use, transmit, reproduce, display, distribute and prepare derivative works of the content, materials, or technology supplied by Customer to ViewPoint in connection with ViewPoint’s provision of the Services, in each case as necessary to provide the Services to Customer. Additionally, Customer grants ViewPoint a non-exclusive, royalty-free, perpetual license to use the Customer Marks to identify Customer as a customer of ViewPoint on promotional materials and ViewPoint’s website. Any use of the Customer Marks shall be in accordance with Customer’s standard trademark guidelines, if any such guidelines are provided to ViewPoint.

3. CUSTOMER DATA

3.1 Use of Customer Data As between the parties, Customer shall retain all right, title (if applicable), and interest (including any and all intellectual property rights) in and to the Customer Data as provided to ViewPoint. Subject to the terms of this Agreement, Customer hereby grants to ViewPoint a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Services to Customer. Customer will be solely responsible for the data entered in the Application, whether entered by Customer, or by ViewPoint on behalf of the Customer.
3.2 Customer Data Representation.Customer represents, covenants, and warrants that Customer: (i) has all rights, consents and approvals necessary to provide ViewPoint with any data (including Customer Data), or other items that Customer provides to ViewPoint (including through its use of the Services) under the Agreement (the “Customer Materials”), (ii) is not infringing on the rights of any third-parties through its submission of the Customer Materials to ViewPoint, (iii) is in compliance with applicable law and regulations (including, without limitation, the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”)) for Customer Materials submitted to the Application, and (iv) has provided all required and appropriate warnings, information, and disclosures under HIPAA and any other applicable law or regulation with respect to the Customer Materials.
3.3 Application Performance Data. Notwithstanding anything to the contrary in the Agreement, ViewPoint does hereby reserve the right to collect, analyze, use, and retain data relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data, and data or works derived therefrom), and ViewPoint may (during and after the term hereof): (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other ViewPoint offerings, and (ii) disclose such data solely in aggregate, anonymized, or other de-identified form for business purposes. No rights or licenses are granted except as expressly set forth herein.
3.4 Customer Submission of Data to Third Parties. If Customer and Customer’s Authorized Users choose to share Customer Data with third parties on their own or through certain features of the Application, Customer is solely responsible for that disclosure, and what any third parties do with Customer Data. Likewise, Customer is solely responsible for any actions Authorized Users take with respect to Customer Data, including deleting or corrupting Customer Data. Customer acknowledges that ViewPoint is not responsible for the disclosure of Customer Data by Customer or its agents (including Authorized Users) to any third parties. Customer agrees to be bound by any third-party terms of service, and ViewPoint accepts no responsibility or liability for such third-party services.
3.5 Customer Responsibility for Customer Data. Subject to any of ViewPoint’s compliance obligations in the Agreement, Customer is solely responsible for the content, accuracy and integrity of Customer Data and for correcting errors and omissions in Customer Data. ViewPoint is not responsible for the accuracy, completeness, appropriateness, or legality of Customer Data submitted to the Services. VIEWPOINT IS NOT LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY CUSTOMER’S FAILURE TO COMPLY WITH SECTION 3.4 OR THIS SECTION 3.5, IRRESPECTIVE OF ANY ACT OR OMISSION ON THE PART OF VIEWPOINT.
3.6 Personal Information. Customer represents and warrants that Customer shall, in relation to any personal information shared with ViewPoint pursuant to this Agreement, provide all notices, obtain all consents, and take all other steps required by applicable laws in relation to Customer’s collection, processing, sharing with, and submission to ViewPoint, and ViewPoint’s use as contemplated by this Agreement of personal information.

4. DATA SECURITY

4.1 ViewPoint’s Security Standards. Customer is solely responsible to review and to make an independent determination as to whether the technical and organizational measures for the Services meet Customer’s requirements, including all its security obligations under applicable data protection laws and regulations. Customer acknowledges and agrees that (considering the state of the art, the costs of implementation, and the nature, scope, context and purposes of the processing of its personal information as well as the risks to individuals) the security practices and policies implemented by ViewPoint and its service providers provide a level of security appropriate to the risk with respect to its personal information.
4.2 Customer’s Security Standards. Customer is responsible for implementing and maintaining privacy protections and security measures for components that Customer provides or controls, including without limitation, ensuring that: (i) Customer’s computer systems are secure and protected from unwanted interference (such as “hackers” and viruses), (ii) all transmissions are screened for viruses or other harmful code prior to transmission to Customer’s or ViewPoint’s servers; and (iii) Customer Data is encrypted. Customer acknowledges that if Customer wishes to protect Customer Data when transmitting it to the Services, it is Customer’s responsibility to use a secure encrypted connection to the internet.
4.3 Internet Access Risks. Customer acknowledges and agrees that use of or connection to the internet is inherently insecure and provides opportunity for unauthorized access by a third party to Customer’s and its Authorized Users’ (as well as ViewPoint’s and its service providers’) computer systems, networks and all information stored therein. NOTWITHSTANDING VIEWPOINT’S BEST EFFORTS TO PROVIDE INDUSTRY STANDARD DATA SECURITY, VIEWPOINT DOES NOT GUARANTEE THE PRIVACY, SECURITY, AUTHENTICITY, AND NON-CORRUPTION OF ANY INFORMATION TRANSMITTED OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. VIEWPOINT SHALL NOT BE RESPONSIBLE FOR ANY ADVERSE CONSEQUENCES WHATSOEVER FOR CUSTOMER’S OR ITS AUTHORIZED USERS’ CONNECTION TO OR USE OF THE INTERNET, AND VIEWPOINT SHALL NOT BE RESPONSIBLE FOR ANY USE BY CUSTOMER OR AN AUTHORIZED USER’S INTERNET CONNECTION IN VIOLATION OF ANY LAW, RULE OR REGULATION.

5. PAYMENT

5.1 Fees. Customer will pay ViewPoint the applicable fees described in the Order and SOW (if any) for the Services in accordance with the terms therein (“Fees”). If Customer believes that ViewPoint has billed Customer incorrectly, in order to be eligible to receive an adjustment or credit, Customer must contact ViewPoint no later than sixty (60) days after the date on the first invoice or billing statement for the period in which the error or problem appeared. Inquiries must be in writing and sent to ViewPoint’s customer support department. Except as otherwise provided in this Agreement, Fees are non-refundable.
5.2 Payment Authorization. Customer will provide ViewPoint with valid and updated payment information upon commencement of the Term. Customer authorizes ViewPoint to initiate ACH (or credit card, if applicable) payments for the Services pursuant to the payment interval specified in the Order (or annually, in advance, if no payment interval in the Order is specified) for the duration of the Initial Term, and thereafter, for the duration of any applicable Renewal Term (defined below).
5.3 Pricing Changes. ViewPoint may increase subscription Fees upon renewal of the Term for which ViewPoint will provide at least 30 days advanced written notice to Customer by email. Customer acknowledges that the expiration of any discount or incentive programs to which Customer was previously entitled shall not constitute a Fee increase or otherwise require notice thereof.
5.4 Payment Requirements. Fees are due and payable (and commence) on the effective date of the applicable Order (or on the day of receipt of an applicable invoice, whichever comes first). Customer is responsible for providing complete and accurate billing and contact information to ViewPoint and notifying ViewPoint of any changes to such information.
5.5 Penalties. If: (a) payment for Fees is not received by ViewPoint by the due date indicated on the Order or SOW, or (b) Customer withdraws ACH (or credit card) payment approval and fails to provide an alternative method of payment prior to the payment due date, then Customer shall incur “Overdue Fees” that: (a) accrue interest at the lesser of 1½% per month or the highest rate allowed by law on Overdue Fees, and (b) Customer shall reimburse ViewPoint for any expenses incurred, including interest, costs and reasonable attorneys’ fees, incurred in collecting amounts due to ViewPoint hereunder.
5.6 Taxes. ViewPoint’s Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder.

6. CONFIDENTIALITY

6.1 Confidential Information. As used herein, the term “Confidential Information” means all oral or written information, of whatever kind and in whatever form relating to the following: ViewPoint’s business, the Parties’ legal and business affairs, the Parties’ financial and technical information, the Parties’ software, databases, and interfaces, the terms of the Agreement, ViewPoint’s pricing, ViewPoint’s customers, the Application, materials provided through the Application (including Customer Materials), applications, source code, object code, training data, language model prompts, models, algorithms, systems of the Application, or any other information that should reasonably be interpreted as proprietary or confidential given the circumstances of disclosure, whether in tangible or intangible form, and whether or not marked as “confidential”, that may be obtained from any source as a result of the Agreement together with all such other information designated by the Disclosing Party as confidential.
6.2 Disclosure. Each Party (the “Receiving Party”) agrees during the Term of the Agreement and thereafter for a period of three (3) years, that it and its officers, directors, employees, consultants, representatives, and agents shall regard and keep any Confidential Information of the other Party (the “Disclosing Party”) in strict confidence, and shall not use, disclose or distribute any such Confidential Information to any third party person, firm, or entity without the express written permission of the Disclosing Party or as permitted herein, provided that no disclosure or use of Confidential Information shall exceed the scope of this Agreement. A Receiving Party may disclose Confidential Information to an affiliate or professional adviser who has a need to know such information for the purposes of this Agreement, provided that the Receiving Party disclosing information to its affiliate or professional advisor shall be responsible for compliance by such persons with the requirements of this Section and shall ensure that such persons shall be subject to restrictions of confidentiality no less restrictive then required under this Agreement.
6.3 Exceptions. Notwithstanding the foregoing, a Party’s Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third party without any obligation of confidentiality to the Disclosing Party; or (d) is independently developed by the Receiving Party without reference, or as a result of any access to the Disclosing Party’s Confidential Information. Further, notwithstanding Section 6.2, each Receiving Party may disclose the Disclosing Party’s Confidential Information as required to comply with any validly issued subpoena or order, provided that, if legally permissible, prior to compliance with any such order, such Receiving Party shall provide prompt prior written notice thereof to the Disclosing Party, and at the request and expense of the Disclosing Party, such Receiving Party will cooperate with the Disclosing Party to obtain a protective order. Further, pursuant to the preceding sentence, a Receiving Party shall disclose only the minimum amount of the Disclosing Party’s Confidential Information that it is legally required to furnish and, where appropriate, will exercise its best efforts to obtain written assurances that confidential treatment will be accorded to such Confidential Information.
6.4 Confidential Information After Termination. Upon termination of the Agreement and/or upon Disclosing Party’s request, the Receiving Party agrees to, at the Disclosing Party’s election, destroy or surrender and deliver to the Disclosing Party all Confidential Information that has been provided to the Receiving Party and provide written certification of the same at the request of the Disclosing Party. Notwithstanding the foregoing and provided that the Receiving Party preserves the confidentiality of any Confidential Information retained, Receiving Party shall not be in breach of the Agreement should copies of the Confidential Information be automatically archived in its computer system back-up in accordance with Receiving Party’s security and/or disaster recovery procedures in accordance with the Receiving Party’s internal procedures. Furthermore, the Receiving Party may retain Confidential Information as required by applicable law, legal obligation, or as otherwise provided for in this Agreement; provided, however, that the Receiving Party shall continue to be bound by confidentiality obligations of this Agreement for so long as it retains the Confidential Information.

7. TERM; TERMINATION

7.1 Term. The Master Agreement commences on the Effective Date and continues in full force and effect for so long as a valid Order or SOW exists hereunder, unless earlier terminated in accordance with its terms. The Initial Term of the Agreement is specified in the Order. Thereafter, the Agreement will automatically renew for successive terms equal to the Initial Term (each, a “Renewal Term” and, collectively with the Initial Term, the “Term”), unless and until either Party notifies the other in writing in accordance with the notice provision of this Master Agreement of its intent to not renew at least ninety (90) days’ prior to the end of the Term.
7.2 Termination. Either Party may terminate the Agreement immediately by written notice to the other Party if (i) the other party materially breaches the Agreement and does not cure such breach within thirty (30) days following written notice thereof, or (ii) either Party makes a general assignment for the benefit of creditors, is adjudicated as bankrupt or insolvent, commences a case under applicable bankruptcy laws or files a petition seeking reorganization. If the material breach is reasonably incapable of cure, then the non-breaching party may immediately terminate this Agreement. If Customer terminates for any other reason except for a material breach by ViewPoint, or ViewPoint terminates pursuant to a material breach by Customer, ViewPoint may, in its discretion: (i) if allowed under applicable law, accelerate Customer’s unpaid fee obligations for the balance of the applicable Term that are not yet due and payable (“Full-Term Fees”) to become immediately due and payable upon written notice to Customer, (ii) suspend Services, and/or (iii) terminate this Agreement without waiving the requirement for Customer to pay any Overdue Fees and Full-Term Fees. In no event will termination relieve Customer of its obligation for unpaid Fees payable to ViewPoint for the period prior to a material breach. Such Fees are owed in addition to the Full-Term Fees.
7.3 Suspension. In addition to any other remedies available at law or in equity, ViewPoint will have the right, in its sole discretion, to immediately suspend Customer’s access to the Services in the event of acts or omissions of Customer or its Authorized Users that are not in compliance with the Agreement. ViewPoint will use commercially reasonable efforts to give Customer prior e-mail notice of suspension, and Services will resume once the non-compliance is resolved (this may include payment of Overdue Fees and Full-Term Fees if applicable). Fees will continue to accrue and shall not be tolled during any suspension period. ViewPoint will not be liable to Customer or its Authorized Users for any loss, damage or inconvenience suffered resulting from lawful suspension of Services under this paragraph.
7.4 Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights and licenses granted to Customer hereunder will terminate immediately, (ii) ViewPoint will stop providing the Services to Customer, (iii) Customer shall pay all Fees due and payable (including, without limitation, Overdue Fees and Full-Term Fees, if any), (iv) Customer will immediately cease all use of the ViewPoint Application, and (v) each Party will make no further use of any Confidential Information belonging to the other Party (excepting the authorized uses stated in this Agreement); provided, ViewPoint will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter ViewPoint may, but is not obligated to, delete stored Customer Data.
7.5 Survival. Termination or non-renewal of the Agreement will not affect the rights or obligations to the Parties for provisions: (1) expressly intended to survive termination, including, without limitation, sections 1, 2.3, 2.4, 2.6, 2.8, 3, 5, 6, 7, 8, 9, 10, 11, and 12, and (2) that by their nature would reasonably be expected to survive termination.

8. REPRESENTATIONS AND WARRANTIES

8.1 Mutual Representations and Warranties. Each Party represents to the other that it is a valid legal entity and is in good standing or validly existing under the laws of the state of its formation and residence. Each Party represents that it has all the requisite legal power and authority to execute, deliver and perform its obligations under the Agreement; that the execution, delivery and performance of the Agreement has been duly authorized; that the Agreement is enforceable in accordance with its terms; and that no approval, authorization or consent of any governmental or regulatory authorities is required to be obtained or made in order for it to enter into and perform its obligations under the Agreement.
8.2 Limited Warranty. ViewPoint warrants, for Customer’s benefit only, that the Application will operate in substantial conformity with the most current description of the Services on ViewPoint’s website.
8.3 Warranty Waiver. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 8.2, VIEWPOINT AND ITS AFFILIATES AND SUPPLIERS DO NOT REPRESENT THAT CUSTOMER’S USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ALL ERRORS IN THE SERVICES OR DOCUMENTATION WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICES AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE STATED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY OFFERED BY ANY PARTY OR THIRD PARTY. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY MADE ABOVE, THE SERVICE IS PROVIDED TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES.

9. INTELLECTUAL PROPERTY

9.1 Customer acknowledges that, as between the Parties, ViewPoint owns and retains all right, title and interest in and to the Intellectual Property Rights in the Services (including, without limitation, the Application, derivatives of the Application, custom development for Customer to the Application contemplated in any applicable Order Form or SOW, and anonymized, aggregated or statistical information gathered from the Services). Unless otherwise contemplated in this Agreement, Customer retains all right, title (if applicable), and interest in the Intellectual Property Rights in Customer Data. “Intellectual Property Rights” means: (i) copyrights and other rights associated with works of authorship; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; and (v) all registrations, applications, renewals, extensions, continuations, divisions, or reissues now or in the future.
9.2 Customer agrees that ViewPoint (or others ViewPoint authorizes) may freely use, disclose, reproduce, license, distribute, or otherwise exploit in any manner any feedback, comments, or suggestions Customer provides to ViewPoint about the Services without any obligation to Customer, restriction of any kind (including on account of any Intellectual Property Rights), and without paying any compensation to Customer or any third party.

10. INDEMNIFICATION

10.1 Indemnification by ViewPoint.ViewPoint agrees to indemnify, defend, and hold harmless Customer, and its respective owners, officers, directors, representatives, agents, contractors, personnel, suppliers, partners and employees (collectively, “Representatives”), from and against any liability, damage, loss, cost or expense, including but not limited to legal fees, costs and expenses (“Losses”) arising out of or related to any claim, action, suit, complaint or other proceeding (which are hereinafter collectively referred to as “Claim(s)”) brought by a third party alleging that the Application violates, infringes, or misappropriates the patent, copyright, trademark, or other intellectual property rights of any third-party. If Customer’s use of the Application is, or in ViewPoint’s opinion, likely to be, enjoined due to a claim of infringement, or if required by settlement, ViewPoint may, in its sole discretion: (a) substitute substantially functionally similar products or services; (b) procure for Customer the right to continue using the Application; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the Term which was paid by Customer but for which Services were not rendered by ViewPoint. The foregoing indemnification obligations of ViewPoint shall not apply: (1) if the Application is modified by any party other than ViewPoint, but solely to the extent the alleged infringement is caused by such modification; (2) the Application is combined with other products or processes not authorized by ViewPoint, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Application; or (4) any action arising as a result of Customer Data or any third-party deliverables or components contained within the Application. THIS SECTION 10.1 SETS FORTH VIEWPOINT’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
10.2 Indemnification by Customer. Customer hereby agrees to indemnify, defend, and hold harmless ViewPoint, from and against any Losses, incurred by ViewPoint and its respective Representatives arising out of or related to any Claim brought by a third party based in whole or in part upon any of the following: (a) any use of the Application by Customer, and Authorized Users, and each of their respective Representatives that violates any of the representations, warranties, obligations, terms, or conditions of this Agreement, or applicable law; or (b) Customer, or its Authorized Users, or Representatives: (i) did not collect, maintain, or transfer personal information in accordance with all applicable privacy and data protection laws (“Privacy Laws”); and/or (ii) failed to provide notices to, and/or receive consents from the individual subjects of such personal information necessary in the treatment or the transfer of such personal information to or from ViewPoint or any third party, and the use and processing described herein, and in ViewPoint’s Privacy Policy.
10.3 Indemnification Procedures.When seeking indemnification, the indemnified Party shall: (a) promptly notify the indemnifying Party in writing of the claim, suit, or proceeding for which indemnification is sought, (b) upon indemnifying Party’s request, permit the indemnifying Party to control the defense and settlement negotiations of the claim, suit or proceeding, (c) cooperate with the indemnifying Party as reasonably requested to assist in the defense and/or settlement of the claim, suit or proceeding, and (d) have the right to provide for its own separate defense at its own expense. Notwithstanding the foregoing, the failure to give notice to the indemnifying Party within a reasonable time of the commencement of any Claim under this Section will not relieve the indemnifying Party of any liability to the indemnified Party under this Section unless such failure materially prejudices the indemnifying Party’s ability to defend such Claim.

11. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL VIEWPOINT (INCLUDING ITS SUBSIDIARIES AND OTHER AFFILIATES) OR ITS OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE MAXIMUM LIABILITY OF VIEWPOINT (INCLUDING ITS SUBSIDIARIES AND AFFILIATES) AND ITS OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER DURING THE 12-MONTH PERIOD OCCURRING IMMEDIATELY PRIOR TO THE EVENT GIVING RIGHT TO LIABILITY. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT INCREASE SUCH LIMIT. THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE CUSTOMER FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. WITH RESPECT TO ANY FREE TRIAL OR PILOT OF THE SERVICES, VIEWPOINT’S AGGREGATE LIABILITY WILL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS, REGARDLESS OF ANY THEORY OF LIABILITY, AND NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY. The Parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Services available to Customer and that, were ViewPoint to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher.

12. GENERAL PROVISIONS

12.1 Assignment. Neither Party hereto may assign its rights, duties or obligations under this Agreement, in whole or in part, to any other person or entity without the prior written consent of the other Party such consent not to be unreasonably withheld. Notwithstanding the foregoing, ViewPoint may assign this Agreement, in whole but not in part, in connection with the sale of all or substantially all of its assets or a change in control pursuant to a merger, acquisition, stock sale, reorganization, bankruptcy, or by operation of law, without the consent of Customer. Nothing in this Agreement shall create any rights in any third-party beneficiaries, and neither Party has any obligation to any third party by virtue of this Agreement. Any impermissible assignment shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
12.2 Independent Contractor. The personnel supplied to Customer are engaged solely by ViewPoint and not by Customer. ViewPoint personnel are not employees or agents of Customer, and neither ViewPoint nor its employees or agents will be subject to the direction, control or supervision of Customer with respect to time spent or procedures followed in the performance of the Services hereunder, and has no right or power, express or implied to do any act or thing that would bind Customer. The Parties are independent contractors. Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other for any purpose, and neither will have any right, power, or authority to create any obligation or responsibility on behalf of the other.
12.3 Dispute Resolution.
- 12.3.1 The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement. Any Party may give the other Party written notice of any dispute not resolved in the normal course of business. Within 15 days after delivery of the notice, the receiving Party shall submit to the other a written response. The notice and response shall include with reasonable particularity (a) a statement of each Party’s position and a summary of arguments supporting that position, and (b) the name and title of the executive who will represent that Party and of any other person who will accompany the executive. Within 30 days after delivery of the notice, the executives of both Parties shall meet at a mutually acceptable time and place.
- 12.3.2 Unless otherwise agreed in writing by the negotiating Parties, the above-described negotiation shall end at the close of the first meeting of executives described above (“First Meeting”). Such closure shall not preclude continuing or later negotiations, if desired.
- 12.3.3 All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the Parties, their agents, employees, experts and attorneys are confidential, privileged and inadmissible for any purpose, including impeachment, in arbitration or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
- 12.3.4 At no time prior to the First Meeting shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the Parties. However, this limitation is inapplicable to a Party if the other Party refuses to comply with the requirements of Paragraph 12.3.1 above.
- 12.3.5 All applicable statutes of limitation and defenses based upon the passage of time shall be tolled while the procedures specified in Paragraphs 12.3.1 and 12.3.2 above are pending and for 15 calendar days thereafter. The parties will take such action, if any, required to effectuate such tolling.
12.4 Arbitration. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration at a JAMS Resolution Center in Los Angeles, California before one arbitrator who is a lawyer with 10 years of active practice in computer technology. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Judgment upon the award rendered in any such arbitration may be entered in any court having jurisdiction thereof, or application may be made to such court for a judicial acceptance of the award and enforcement, as the law of such jurisdiction may require or allow.
12.5 Governing Law. This Agreement and all questions relating to its validity, interpretation, performance and enforcement shall be governed by and construed in accordance with the laws of the state of California without giving effect to conflict of laws provisions. All disputes and/or legal proceedings related to the Agreement shall be brought and maintained exclusively in federal or state courts located in Los Angeles, California, and the parties agree to personal jurisdiction and convenient forum therein.
12.6 Equitable Relief. A breach of this Agreement or of applicable law may give rise to irreparable harm to either Party, for which monetary damages would not be an adequate remedy. Notwithstanding the dispute resolution or arbitration requirements in this Agreement, the Parties may at an time, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
12.7 Attorney’s Fees. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing Party will be entitled to reasonable fees of attorneys and related costs and expenses in addition to any other relief to which such prevailing Party may be entitled. Notwithstanding the foregoing, in any arbitration arising out of or related to this Agreement, the arbitrator shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. If the arbitrator determines a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.
12.8 Notices. All notices and other communications required or permitted under this Agreement will be in writing and will be effective: (i) when personally delivered; (ii) the next business day following deposit with a reputable courier service for overnight delivery; or (iii) five (5) business days following deposit in the United States mail, first class postage prepaid, registered or certified. The Parties shall provide a copy of the notice by e-mail. If to Customer at the address and email indicated in the applicable binding Order, and if to ViewPoint at: 138 E. 12300 S #948, Draper, UT 84020, Attn: Legal Department, with email copy to trevor@vpcomanage.com. In the event of a change of address and email, each Party shall promptly notify the other Party.
12.9 No Waiver.Whether as a single or partial exercise, the failure of either Party to insist upon the performance of any terms or conditions of this Agreement, or to exercise any rights, remedy, power, or privilege conferred in this Agreement, or the waiver of enforcing penalties resulting from any breach of any of the terms or conditions of this Agreement, will not be construed as waiving any such terms, conditions, rights, remedies, powers, or privileges, but the same will continue and remain in full force and effect as if no such forbearance or waiver had occurred.
12.10 Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, including, but not limited to, a strike, blockade, war, act of terrorism, riot, pandemics, quarantines, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency. In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of such events, the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended and the Agreement tolled until the affected Party can reasonably be expected to resume performance.
12.11 Remedies Cumulative. No remedy herein conferred is intended to be exclusive of any other remedy. Each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or existing at law or in equity.
12.12 Further Assurance. The Parties agree to perform all acts and execute all supplementary instruments or documents which may be necessary or desirable to carry out the provisions of this Agreement.
12.13 Entire Agreement.Each Order and SOW shall be subject to this Master Agreement and together represent the entire Agreement; all prior agreements, representations, statements, negotiations and understandings between the Parties are superseded hereby (including, without limitation, any confidentiality or non-disclosure agreements). Any conflicting terms on any pre-printed or standard terms of any Customer purchase order or other business processing document shall have no effect. To the extent the provisions of this Master Agreement conflict with an Order or SOW, this Master Agreement shall control, except where the Order or SOW expressly states the intent to supersede all or part of this Master Agreement.
12.14 Headings.The headings used herein are for convenience only and do not constitute matters to be construed in interpreting this Master Agreement.
12.15 Severability. All clauses of this Master Agreement are distinct and severable and if any clause shall be deemed illegal or unenforceable for any reason, it shall not affect the legality or enforceability of any other clause of this Master Agreement.
12.16 Counterparts. This Master Agreement may be executed and delivered in counterpart, each of which shall be deemed an original and both of which together shall constitute one and the same instrument.
12.17 Master Agreement Modifications.ViewPoint may update this Master Agreement: (1) to reflect changes in the Services (e.g. new services, features, technologies, pricing, or benefits), (2) for legal, regulatory, or security reasons, or (3) to prevent abuse or harm. If ViewPoint materially changes this Master Agreement, ViewPoint will provide reasonable advance notice and the opportunity to review the changes, except (a) when ViewPoint launches a new service or feature, or (b) in urgent situations, such as preventing ongoing abuse or responding to legal requirements.