Terms of Service
Effective Date: May 8, 2018
Thank you for using Vioby!
Our Terms of Service apply to the products and services that we offer to our customers, including our cloud service platform, software applications, tools, services and website, provided by or through Vioby, our third-party vendors or affiliates and our clients.
These Vioby Terms of Service (“Agreement”) sets forth the terms and conditions under which Vioby, Inc. (“Vioby” or “We”) provides the Vioby Cloud Services, our advertising optimization platform, including, without limitation, all related software, documentation and professional services (collectively, the “Services”) to You (“Client” or “You”).
By using our Services, you’re agreeing to be bound by this Agreement, which governs Your access to and use of the Services and constitutes a binding legal agreement between You and Vioby. If You are using our Services for an organization, You’re agreeing to this Agreement on behalf of that organization and hereby represent and warrant that You have the requisite power and authority to enter into and perform Your obligations under this Agreement, and any references to “You” or “Client” will be deemed to include such organization. If you do not agree to this Agreement, then you have no right to access or use the Services.
Our Services and the Engagement
Subject to Your compliance with this Agreement, Vioby will make the Services available to You during the Term of this Agreement. This is a nonexclusive engagement. You may access and use the Services solely for Your internal business purposes.
Additional services. In the event You wish to obtain additional services from Vioby, the parties shall execute a statement of work, which shall be deemed a part of this Agreement.
Independent Contractors. Neither party has the authority to bind the other without express written authorization, and the parties acknowledge that their relationship under this Agreement is not that of employer and employee or of joint venturers, but rather is that of independent contractors.
By virtue of this Agreement, the parties may have access to each other’s Confidential Information.
Limits on Use; Nondisclosure. During the term of this Agreement and for a period of two (2) years after expiration or termination of this Agreement, each party’s Confidential Information may be used by the other party only in connection with the performance of, or as specifically authorized by this Agreement. Each party will protect the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information, including, without limitation, by entering into appropriate confidentiality agreements with employees, independent contractors and subcontractors. Access to Confidential Information will be restricted to those of Vioby’s and Your personnel (as well as Contractors) engaged in a use permitted under this Agreement.
Permitted Disclosures. In the event either party receives a subpoena, or other validly-issued administrative or judicial order, requesting that Confidential Information of the other party be disclosed, it will, to the extent legally permitted: (a) promptly notify the disclosing party in writing of such requirement to disclose and (b) cooperate fully with the disclosing party in protecting against any such disclosure or obtaining a protective order. Thereafter, notwithstanding the foregoing, such party shall be entitled to comply with the subpoena or other process, only to the extent required by law; provided, that, the Confidential Information so disclosed shall continue to be treated as Confidential Information as between the parties hereto.
Cooperation and Assistance. You agree to: (a) provide Vioby with good faith cooperation and access to such information as may be reasonably required by Vioby in order to provide the Services; (b) provide to Vioby such personnel assistance, as may be reasonably requested by Vioby from time to time; (c) carry out in a timely manner all other responsibilities that You have under this Agreement; (d) at Your option, provide Vioby with feedback, comments, and suggestions for improvements relating to the Services (“Feedback”), and (e) comply with all applicable local, state, federal and foreign laws in using the Services.
Management of Users. You are responsible for Your use of the Services and shall ensure that Your employees, contractors, consultants and agents that use the Services (“Authorized Users”) comply with this Agreement, including, without limitation, managing the relationship between Your third party contractors, consultants and agents and Vioby, and You assume all responsibility and liability for each Authorized User’s compliance, performance or non-performance under this Agreement, irrespective of the terms or limitations or exclusions of the agreement between You and such Authorized User. You shall promptly notify Vioby of any known, suspected or alleged violation of this Agreement including any unauthorized use of any password or account or other breach of security and cooperate with respect to: (a) investigation by Vioby of any suspected or alleged violation of this Agreement, and (b) any action by Vioby to enforce this Agreement. Vioby may suspend or terminate any Authorized User’s access to the Services at any time upon notice to You in the event that Vioby determines that such Authorized User has violated this Agreement. You shall be liable for any violation of this Agreement by any Authorized User.
Third Party Interactions. During use of the Services, You may sell goods and/or services to, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Services. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between You and the applicable third party. Vioby and its licensors shall have no liability, obligation, or responsibility for any such correspondence, purchase, promotion or other transaction or agreement between You and any such third party. Vioby does not endorse any sites on the Internet that are linked through the Service (including, without limitation, those of the Client). Vioby provides these links or maintains the connectivity to You only as a matter of convenience, and in no event shall Vioby or its licensors be responsible for any content, products, or other materials on or available from such sites.
Non-solicitation. During the term of this Agreement and for a period of one year from the date of termination or expiration of this Agreement, You agree that you will not without the prior written consent of Vioby, directly or indirectly solicit for employment or retention as an independent contractor any person employed by Vioby of whom it becomes aware as a result of the services provided under this Agreement, other than a person who has not been employed by Vioby in the preceding six (6) months. Nothing in this paragraph shall apply to unsolicited responses by employees to general recruitment or advertising.
Marketing Support. During the Term of this Agreement, You grant to Vioby the right to publicly acknowledge You as a Vioby customer and grant to Vioby a non-exclusive, limited right to use Your name, trademarks, and logos (collectively, the “Customer Marks”) in marketing materials identifying You as a Vioby customer. Vioby shall make all commercially reasonable efforts to adhere to Your trademark and logo use guidelines, which You shall provide to Vioby. Such marketing materials shall include, but not be limited to, Vioby’s websites, brochures, press releases and presentations.
Telecommunications and Internet Services. You acknowledge and agree that the use of the Services by You and by any Authorized Users is dependent upon access to telecommunications and Internet services. You shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Vioby shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any telecommunications and Internet services whether provided by You or otherwise.
Client Property. All materials You provide to Vioby in connection with this Agreement, including all Confidential Information, reports, designs, data, analyses, business rules and any other materials (collectively, “Client Property”), shall be and remain Your exclusive property unless otherwise agreed in writing. Vioby will use such Client Property as necessary to perform the Services and will protect Your Confidential Information in accordance with this Agreement.
Vioby Materials. Vioby shall retain all right, title, and interest in the Services and to Vioby’s tools, concepts, proprietary ideas, know-how, methodologies, source code, and other intellectual property related to or comprising the Services or otherwise used or developed by Vioby in the course of performing the Services hereunder and any derivative works thereof (whether created by You or otherwise) (collectively, the “Vioby Materials”). This Agreement is not a sale and does not convey to You any rights of ownership in or related to all or any part of the Vioby Materials. Vioby’s name, logo, and the product names associated with the Vioby Materials are trademarks of Vioby or third parties, and no right or license is granted to use them.
Right to Use. Subject to the terms and conditions of this Agreement, Vioby hereby grants to You and your Authorized Users a limited, non-exclusive, revocable right to access and use the Services solely for Your internal business purposes.
Restrictions. You will not yourself, and shall not direct, authorize, facilitate, or knowingly permit any parent, subsidiary, affiliate, Contractor, customer or agent to: (1) transfer, distribute, sell, lease, license or sublicense access to the Vioby Materials unless expressly permitted to do so under this Agreement; (2) attempt to decompile, disassemble, or reverse engineer the Services or any other Vioby Material, in whole or in part; (3) write or develop any derivative software or any other services or software program based upon any Vioby Materials or any Vioby Confidential Information; (4) resell the Services; or (5) provide, disclose, divulge or make available to, or permit use of the Services by any third party other than Authorized Users or as otherwise expressly permitted by this Agreement, without Vioby’s prior written consent. These limitations are not intended to prevent You from using the Services as part of providing value-added services to Your own customers if You are operating in an agency capacity. You may not access or use the Services if You are a direct competitor of Vioby, except with Vioby’s prior written consent. You may not access or use the Services if you are under the age of 18 years old.
Feedback. Vioby shall be entitled to use any feedback or suggestion it receives from You (“Feedback”) for the purpose of optimizing, improving, enhancing or creating derivative products, and shall have no obligation to compensate You. All Feedback and derivatives thereto shall be owned by Vioby, excluding any Client Property that may be included in the Feedback; and You shall and hereby do, assign all of Your right, title, and interest in and to such Feedback to Vioby. To the extent the Feedback includes any Client Property then You shall and hereby do grant to Vioby a limited, non-exclusive, worldwide, fully paid right and license to use such Client Property, for the term of this Agreement.
Usage Metrics. Vioby may collect or receive from You information and metrics pertaining to performance of the Services and gains in workflow efficiency attributable to use of the Services and useful for improving and otherwise developing Vioby’s products and services (“Usage Metrics”). Vioby uses such Usage Metrics for its internal business purposes. If Vioby discloses such Usage Metrics to third parties, for example, to demonstrate performance of the Services, we will do so on a Client-anonymous basis, or on a Client-specific basis if the Usage Metrics are aggregated with the usage data of other organizations also identified.
Fees, Payment and Taxes
In consideration for Vioby providing the Services, You shall pay to Vioby all the applicable subscription fees and other charges, including any third party API costs, including publisher or advertising API costs, billed to Vioby in the course of providing the Services to You (collectively, “Fees”). Monthly Fees for Your use of the Services shall be (i) as described and/or as selected by You at www.vioby.com or (ii) negotiated between you and Vioby by creating an addendum to this Agreement. Each month or other agreed-to period during the Term of this Agreement, Vioby will automatically bill your credit card for your use of the Services or, if such terms have been agreed, invoice You, such invoices to be paid net thirty days from the date of invoice. Fees are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Vioby’s net income.
Fees for additional professional services or other additional services are billed at Vioby’s standard rates for such services in effect at the time such services are provided.
Term, Termination and Renewal
Term and Renewal. The term of this Agreement will commence on the earlier of when You click “I accept” or “I agree” upon web registration, or begin to use the Services or continue to use the services, and will continue for three (3) months (“Initial Term”) and will automatically renew for subsequent three (3) month periods (each, a “Renewal Term”) at the then-current Fees, unless terminated by either party as provided for in this Agreement (the Initial Term and Renewal Terms are collectively the “Term”).
Termination. You may terminate this Agreement by providing written notice to Vioby no less than thirty (30) days prior to the end of the Initial Term or any applicable Renewal Term of Your cancellation of the Agreement at the end of the Initial Term or such Renewal Term, as applicable.
Notwithstanding the above, if You and Vioby have agreed to a trial period (“Trial Term”), then You may terminate the Agreement at any time during the Trial Term by stopping all use of the Services and notifying Vioby within fifteen (15) days. If You use the Services after the Trial Term, the Initial Term, as defined above, will commence at the time of such usage.
Vioby may terminate this Agreement at any time if it reasonably determines that You are in breach of this Agreement, including, but not limited to, with respect to payment of Fees. In addition, Vioby may terminate Your Account any time during a Trial Term. After a Trial Term, if any, Vioby may terminate this Agreement, for any reason, upon thirty (30) days notice to You.
Effects of Termination; Survival. Upon expiration or termination of this Agreement, Your and Your Authorized Users right to access and use the Services shall immediately terminate, You and Your Authorized Users shall immediately cease all use of the Services, and You shall return to Vioby or delete, as appropriate, and make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to Vioby. Upon expiration or termination of this Agreement, Vioby shall have no obligation to deliver any copy of the Client Property to You, and may delete such Client Property at any time. Furthermore, upon expiration or termination of this Agreement, Vioby shall cease use of the Customer Marks; provided, however, that (a) Vioby shall have a reasonable time to remove the Customer Marks from Vioby’s website as well as from any promotional materials, (b) Vioby shall be entitled to distribute all of the promotional materials printed during the Term that include the Customer Marks, and (c) Vioby shall not be required to remove any such printed materials from circulation.
The provisions contained in Confidential Information, Proprietary Rights, Warranty Disclaimer, Indemnification, Limitation of Liability and General Provisions sections shall survive the expiration or termination of this Agreement for any reason.
Representations and Warranties
Services. Vioby represents and warrants that the Services will perform materially in accordance with the specifications as described in the Website (the “Specifications”). Your sole and exclusive remedy for any nonconformity of any Services shall be for Vioby to promptly re-perform such services if You provide to Vioby written notice of the nonconformity within thirty (30) days after completion of such Services; or if Vioby determines that re-performance is not feasible, then refund You the fees for the applicable nonconforming Services. Notwithstanding the foregoing, these representations and warranties shall not apply to nonconformity due to: (a) any part of the Services that are modified other than by Vioby; (b) software that is owned or licensed by You and not included in the Vioby Materials; or (c) use of the Services by You in a manner that would constitute a breach of this Agreement.
Warranty Disclaimer. You assume sole responsibility and liability for results obtained from the use of the Services and for conclusions drawn from such use. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Client Property. Vioby shall have no liability for any claims, losses, or damage caused by errors or omissions in any information provided to Vioby by You, including, without limitation, Client Property, in connection with the Services or any actions taken by Vioby at Your direction. Vioby shall have no liability for any claims, losses or damages arising out of or in connection with the use by You or by any Authorized User of any third-party products, services, software or websites that are accessed via links from within the Services.
THE WARRANTIES SET FORTH IN THIS SECTION ARE THE ONLY WARRANTIES MADE BY VIOBY. VIOBY DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. VIOBY HEREBY EXPRESSLY DISCLAIMS ANY OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE.
Infringement by Vioby Services. Except as excluded below in this subparagraph, Vioby will, at its expense, defend, and will indemnify and hold harmless You, Your subsidiaries, parent corporations, affiliates, officers, directors, independent contractors, shareholders, employees, agents, and successors and assigns from and against any amounts payable (including costs, expenses or liability, including reasonable attorney’s fees and costs, related to an allegation) resulting from, a third party claim or suit, to the extent such third party claim or suit alleges that Your proper use of the Services infringes a United States patent, copyright, or trademark, or misappropriates a U.S. trade secret or other U.S. intellectual property right; provided, that, Vioby will not be obligated to indemnify You to the extent that the alleged infringement is caused by (i) Your modification to the Services other than by or specifically at the direction of Vioby, or (ii) combination of the Services with any item not provided by Vioby, or (iii) Client Property provided to Vioby by You, including any changes made at Your direction.
Vioby Obligations. If Your use of the Services is held to constitute an infringement or misappropriation, or if in Vioby’s opinion, such Item is, or is likely to be held to constitute, an infringement or misappropriation, Vioby may, at its expense and option: (a) procure the right for You to continue using the Services; or (b) modify the Services so that it is non-infringing and non-misappropriating while performing materially in accordance with the Specifications. If none of these options can be accomplished in a reasonable time or, in Vioby’s opinion, are not commercially reasonable, as Your sole and exclusive remedy, Vioby shall issue a refund to You of all applicable Fees paid for the infringing or misappropriated Item, for the period of time during which You were unable to use the Services as well as the remaining Term if You have issued a pre-payment, after which time, all of Your rights to access and use the Services subject to the refund, shall terminate.
Infringement by Client Property. Except as excluded below in this subparagraph, You will, at Your expense, defend, and will indemnify and hold harmless Vioby, its subsidiaries, parent corporations, affiliates, officers, directors, employees, agents, and successors and assigns from and against any amounts payable (including costs, expenses or liability, including reasonable attorney’s fees and costs, related to an allegation) resulting from, a third party claim or suit to the extent such third party claim or suit alleges that (i) a third party has suffered injury, damage or loss resulting from the use by You or by any Authorized User of the Services, or (ii), the Client Property in the form provided to Vioby or the use by You or by any Authorized User of the Services in violation of this Agreement, infringes a patent, copyright, trademark, or misappropriates a trade secret or other intellectual property right.
THE FOREGOING STATES THE ENTIRE OBLIGATION OF VIOBY AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES. Vioby shall have no liability under this section to the extent that any third-party claims described herein are based on use of the Services in a manner that violates this Agreement or the instructions given to You by Vioby.
Procedure. To receive the foregoing indemnities, the Indemnitee must (a) promptly notify the Indemnitor in writing of a claim or suit and provide reasonable cooperation, provided that late notice shall only relieve the Indemnitor of its obligations to the extent that the failure to receive prompt notice prejudices its position; and (b) tender to the Indemnitor full authority to defend or settle the claim or suit; provided, that, as a condition to the Indemnitor’s entitlement to control the defense of any claim, the Indemnitor must acknowledge in writing to the Indemnitee the right of the Indemnitee to an indemnity pursuant hereto and the Indemnitor’s obligation to use all commercially reasonable efforts to defend the claim as required hereunder. Neither party has any obligation to indemnify the other party in connection with a settlement made without the Indemnitor’s written consent. The Indemnitor may not settle such claim or suit without the consent of the Indemnitee, which consent shall not be unreasonably withheld or delayed. The Indemnitee has the right to participate at its own expense in the claim or suit and in selecting counsel therefor.
Limitation of Liability
Excluded Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL OR PUNITIVE LOSS, DAMAGES OR EXPENSES (INCLUDING LOST PROFITS, SAVINGS, COMPETITIVE ADVANTAGE, GOODWILL, BUSINESS INTERRUPTION , COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS) EVEN IF IT HAS BEEN ADVISED OF THEIR POSSIBLE EXISTENCE, AND REGARDLESS OF THE FORM OF THE CLAIM OR SUIT OR THE TYPE OF DAMAGES. EACH PARTY IS OBLIGATED TO TAKE COMMERCIALLY REASONABLE STEPS TO MITIGATE THE OTHER PARTY’S LIABILITY.
General Limitation. IN NO EVENT SHALL VIOBY’S LIABILITY UNDER THIS AGREEMENT EXCEED IN THE AGGREGATE (a) THE TOTAL FEES PAID OR TO BE PAID BY YOU DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE LAST ACT OR OMISSION THAT GIVES RISE TO SUCH CLAIM FOR LIABILITY; or (b) IF A CLAIM ARISES DURING THE FIRST TWELVE (12) MONTHS AFTER THE EFFECTIVE DATE OF THIS AGREEMENT, THE ESTIMATED AMOUNT OF FEES THAT WOULD BE PAYABLE BY YOU DURING SUCH TWELVE (12) MONTH PERIOD (each, a “CAP”). THIS CAP IS AN AGGREGATE FOR ALL CLAIMS AND SHALL NOT BE INCREASED BY MULTIPLE CLAIMS SUBJECT TO THE SAME, OR OVERLAPPING, TWELVE (12) MONTH PERIODS.
Vioby may revise this Agreement from time to time. If we revise this Agreement, we will post the most current version on the Website and update the “Effective Date” or provide you with other notification. Vioby may upgrade, update and otherwise modify the Services in its sole discretion. By continuing to use or access the Services after the effective date of the Agreement revision or Services modification, you agree to be bound by the revised Agreement. If the revisions or modifications are not acceptable to You, Your only recourse is to cease using the Services.
Severability. If any term, condition or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same will not affect the other terms, conditions and provisions hereof or the whole of this Agreement, but such term, condition or provision will be deemed modified to the extent necessary in the court’s opinion to render such term, condition or provision enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent the parties’ intent and agreements set forth herein.
Cumulative Remedies. Except for the remedies set forth in for Indemnification, which are exclusive, all rights and remedies set forth in this Agreement shall be in addition to all other rights and remedies available at law or in equity, including, without limitation, specific performance against You for the enforcement of this Agreement, and temporary and permanent injunctive relief.
Notice. Vioby may give notice to You by e-mail to Your e-mail address on record in Vioby’s account information. You may give notice to Vioby by sending an e-mail to firstname.lastname@example.org.
Entire Agreement. This Agreement sets forth the entire understanding between the parties with respect to the subject matter contained herein, and supersedes all prior agreements, arrangements and communications, whether oral or written, solely with respect to the subject matter hereof; and no other agreements, representations, warranties or other matters, whether oral or written, will be deemed to bind the parties with respect to the subject matter hereof.
Assignment. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party, except that no consent shall be required for an assignment of this Agreement by a party pursuant to a change of control or a merger or sale of substantially all of such party’s assets or outstanding stock.
Waiver. No provision of or right under this Agreement shall be deemed to have been waived by any act or acquiescence on the part of either party, its agents, or employees, but only by an instrument in writing signed by an authorized officer of each party. No waiver by either party of any breach of this Agreement by the other party shall be effective as to any other breach, whether of the same or any other term or condition and whether occurring before or after the date of such waiver.
Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party. Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
Cooperation. You and Vioby will cooperate with each other in taking actions and executing documents, as appropriate to achieve the objectives of this Agreement.
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its principles of conflicts of law (and specifically excluding the U.N. Convention for the International Sale of Goods). Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Boston, Massachusetts. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
Headings. Section headings contained in this Agreement are for convenient reference only and do not constitute part of this Agreement and shall not affect the interpretation hereof.
Equitable Relief. It is expressly agreed that a material breach of this Agreement involving Confidential Information, or intellectual property rights of a party hereto will cause irreparable harm to the other party and that a remedy at law may be inadequate. Therefore, in addition to any and all remedies available at law, the parties shall be entitled to seek injunctive relief (without the necessity of posting any bond or surety) against the breaching party in the event of any such threatened or actual violation. The parties agree that any action relating to, or arising under this paragraph shall be instituted and prosecuted in federal or state courts located in Boston, Massachusetts.
Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
“Confidential Information” means marketing plans, product information and specifications, customer and supplier information, trade secrets, source code, and all other information relating to each party’s past, present or future research, development, business activities, products, services or technical knowledge, which is proprietary to the disclosing party or received from third parties subject to a duty on the disclosing parties’ part to maintain the confidentiality of such information, and either marked or otherwise designated as “confidential” or the like, or disclosed under circumstances that would be understood to be confidential by a reasonable person. Vioby Confidential Information includes, without limitation, the Services and any software used for the provision of the Services, whether in source or executable code, documentation, nonpublic financial information, pricing other than pricing publicly disclosed on Vioby’s website, business plans, techniques, methods, processes, and the results of any performance tests of the Services.
Nothing in this Agreement will prohibit or limit either party’s use of information that is: (a) previously known to it without obligation of confidence; (b) independently developed by it or for it without reference to the Confidential Information of the other party hereto; (c) lawfully acquired by it, without obligation of confidence, from a third party that is not under an obligation of confidence to the other party hereto with respect to such information; or (d) in the public domain through no act or omission by a party hereto. Such information is not considered Confidential Information.
“Force Majeure Event” means any event outside the reasonable control of a party after consideration of all commercially reasonable, built-in, fail-safe mechanisms and processes. A Force Majeure Event may include by way of example, (a) civil commotion, riot, terrorism, invasion, war or preparation for war, (b) fire, explosion, storm, flood, earthquake, subsidence, epidemic, or other natural physical disaster, (c) unavailability of the use of railways, shipping, aircraft, motor transport, or any other means of public or private transport, (d) political interference with the normal operations of either party or (e) delay or interruption in communications, cloud services, utilities, cable (cut) caused by third party utility providers, including telecommunications or other Internet provider(s).
If you have any questions about this Agreement, please contact Vioby at email@example.com.
55 Audubon Dr
Chestnut Hill, MA 02467-2620