Effective Date: May 5, 2020
Please Read This Carefully
Vutiliti, Inc. (Company) licenses its cloud-based platform and provides related services pursuant to these terms of service (“Agreement”). This Agreement is a legal contract between you (if you use Company Software and Services in your capacity as an individual) or the legal entity you represent (e.g., your employer) (You) and Company. Read the terms of this Agreement carefully. By clicking “I agree” or using any of the Company Software, You agree to be bound by this Agreement. If You do not agree to the terms of this Agreement, do not click “I agree” or use any of the Company Software.
ARTICLE 1. KEY DEFINITIONS
Affiliate: With respect to either Party, any entity that controls, is controlled by or is under common control with such Party.
Agreement: Consists of these Terms, any other terms and policies implemented and provided or made available to Customer by Vutiliti with respect to the Service(s), and each Purchase Order accepted by Vutiliti under the Agreement.
Confidential Information: All information regarding either Party’s business affairs, products, intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, in written, electronic, or other form or media which has been marked or is otherwise communicated in writing as being “proprietary” or “confidential” or which reasonably should be known by the receiving Party to be proprietary or confidential information. Without limiting the generality of the foregoing, Confidential Information shall include, even if not marked, the Agreement, all Licensed Software, promotional materials, proposals, Vutiliti Equipment, prototypes, quotes, rate information, discount information, and invoices, as well as the Parties’ communications regarding such items. Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain;
(b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non- confidential basis from a third party; or (d) independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
“Customer Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly from Customer or an end user of Customer by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
Customer Equipment: Any and all facilities, equipment or devices supplied by Customer for use in connection with the Service(s).
Defective Product: Any Vutiliti Equipment that is (i) defective, or (ii) not the Vutiliti Equipment requested by Customer pursuant to the applicable Purchase Order.
Intellectual Property Rights: means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
Leased Equipment: Any and all facilities, equipment or devices leased from Vutiliti by Customer for use in connection with the Service(s).
Licensed Software: Computer software or code provided by Vutiliti or required to use the Service(s), including without limitation, associated documentation, and all updates thereto.
Party: A reference to Vutiliti or the Customer; and in the plural, a reference to both companies.
Personal Information: Information that Customer provides or for which Customer provides access to Vutiliti, or information which Vutiliti creates or obtains on behalf of Customer, in accordance with this Agreement that: (i) directly or indirectly identifies an individual; or (ii) can be used to authenticate an individual. To avoid doubt, information that has been deidentified and/or anonymized is not Personal Information.
Purchased Equipment: Any and all facilities, equipment or devices purchased from Vutiliti by Customer for use in connection with the Service(s).
Resultant Data: (a) Data and information related to Customer’s use of the Services that is used by Vutiliti in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services, and (b) deidentified or anonymized information generated by Customer’s individual end users or related to such end users’ use of the Services, which may include Personal Information.
Service(s): The service(s) provided by Vutiliti to Customer described in one or more Purchase Order(s). All Service(s) are subject to availability.
Service Commencement Date: The date(s) on which Service(s) specified in a Purchase Order are or are deemed to be available for use by Customer pursuant to Section 3.3 below. A single Purchase Order containing multiple Service Locations or Service(s) may have multiple Service Commencement Dates.
Purchase Order: A request for Vutiliti to provide the Service(s) and/or Vutiliti Equipment to Service Location(s) submitted by Customer to Vutiliti (a) on a then-current Vutiliti form designated for that purpose or (b) if available, through a Vutiliti electronic or verbal order processing system designated for that purpose.
Service Location(s): The location(s) of Vutiliti Equipment used to provide Service(s) pursuant to a Purchase Order. For multi-tenant buildings, Service Location shall mean the Customer’s leased and/or owned business or residential space.
Service Term(s): The duration of time (commencing on the Service Commencement Date) for which Service(s) are ordered, as specified in a Purchase Order.
Tariff: A federal or state Vutiliti tariff and the successor documents of general applicability that replace such tariff in the event of detariffing.
Termination Charges: Except as otherwise provided herein, charges that may be imposed by Vutiliti if, prior to the end of the applicable Service Term, (i) Vutiliti terminates Service(s) for cause or (ii) Customer terminates any Service without cause. Termination Charges with respect to each Service terminated during the initial Service Term shall equal, in addition to all amounts payable by Customer in accordance with Section 7.3, seventy-five percent (75%) of the remaining monthly fees that would have been payable by Customer under the applicable Purchase Order if the terminated Service(s) had been provided until the end of the initial Service Term.
Third-Party Equipment: Any and all facilities, equipment or devices, whether or not provided by Vutiliti or its authorized contractors, that are not manufactured by or on behalf of Vutiliti and that are used to deliver or otherwise in connection with any of the Service(s).
Vutiliti: Vutiliti, Inc., a Delaware corporation.
Vutiliti Equipment: Any and all facilities, equipment or devices provided by Vutiliti or its authorized contractors at the Service Location(s) that are used to deliver any of the Service(s) including, but not limited to, all terminals, wires, modems, lines, circuits, ports, routers, gateways, switches, channel service units, data service units, cabinets, and racks. Vutiliti Equipment includes both Leased Equipment and Purchased Equipment, as such terms are defined herein. Vutiliti Equipment does not include Licensed Software or Third-Party Equipment.
Vutiliti Materials: The Services, the Licensed Software, and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Vutiliti in connection with the Services or otherwise comprise or relate to the Services or the Licensed Software. For the avoidance of doubt, Vutiliti Materials include Resultant Data and any information, data, or other content derived from Vutiliti’s monitoring of Customer’s access to or use of the Services, but do not include Customer Data.
Vutiliti Website or Website: The Vutiliti website where the General Terms and Conditions, PSAs and other Vutiliti security and privacy policies applicable to the Agreement will be posted. The current URL for the Website is https://vutiliti.com. Vutiliti may update the Website documents and/or URL from time to time and will provide Customer notice, via email or otherwise, of such updates.
ARTICLE 2. CHANGES TO THE AGREEMENT TERMS
Vutiliti may change or modify the Agreement, and any related policies from time to time (“Revisions”) by posting such Revisions to the Vutiliti Website. The Revisions are effective upon posting to the Website. Customer will receive notice of the Revisions via email and in the next applicable monthly invoice. Customer shall have thirty (30) calendar days from the invoice notice of such Revisions to provide Vutiliti with written notice that the Revisions adversely affect Customer’s use of the Service(s). If after notice Vutiliti is able to verify such adverse effect but is unable to reasonably mitigate the Revision’s impact on such Service(s), then (i) subject to the limitations below, Customer may continue to use the Service(s) under the terms and policies in existence immediately prior to the Revisions (the “Prior Terms”), or (ii) Customer may terminate the impacted Service(s) without further obligation to Vutiliti beyond the termination date, including Termination Charges, if any. Notwithstanding the foregoing, in the event Customer continues to use the Service(s) under the Prior Terms, such Prior Terms shall only be applicable with respect to the Service(s) used by Customer as of the effective date of the Revisions. Any expansion of the Service(s) after such date shall be governed the Revisions. The remedy set forth in subsection (i) or (ii), as selected by Customer, shall be Customer’s sole and exclusive remedy with respect to any Revisions.
ARTICLE 3. DELIVERY OF SERVICE(S)
3.1. Orders. A Purchase Order shall become binding on the Parties when (i) it is specifically accepted by Vutiliti either electronically or in writing, or (ii) Vutiliti begins providing the Service(s) described in the Purchase Order, whichever is earlier. When a Purchase Order becomes effective it shall be deemed part of, and shall be subject to, the Agreement.
3.2. Access. Customer shall provide an adequate environmentally controlled space and such electricity as may be required for installation, operation, and maintenance of the Vutiliti Equipment used to provide the Service(s) within the Service Location(s).
3.3. Service Commencement Date. The Service Commencement Date for each Purchase Order shall be the earlier of (i) the first day of the first month following the day that Customer receives any Vutiliti Equipment provided pursuant to such Purchase Order, or (ii) thirty (30) days from the date of such Purchase Order. Upon installation and connection of the necessary facilities and equipment to provide the Service(s), Vutiliti may, but is not required to, notify Customer that the Service(s) are available for use. Any failure or refusal on the part of Customer to be ready to receive the Service(s) on the Service Commencement Date shall not relieve Customer of its obligation to pay applicable Service charges.
3.4. Installation and Maintenance of Vutiliti Equipment. Vutiliti shall have no obligation to install, operate, or maintain Vutiliti Equipment. Vutiliti Equipment is intended for permanent, single-location use; therefore, following installation of Vutiliti Equipment at the applicable Service Location, Customer may not move such Vutiliti Equipment without the prior written consent of Vutiliti.
3.5. Leased Equipment. Leased Equipment is and shall remain the property of Vutiliti regardless of where installed within the Service Location(s), and shall not be considered a fixture or an addition to the land or the Service Location(s). At any time Vutiliti may remove or change Leased Equipment in its sole discretion in connection with provision of the Service(s). Customer shall not use the Leased Equipment for any purpose other than that authorized by the Agreement. Customer shall maintain Leased Equipment in good operating condition during the term of this Agreement at Customer’s expense. Customer is responsible for damage to, or loss of, Leased Equipment caused by its acts or omissions, and its noncompliance with this Section 3.5, or by fire, theft or other casualty at the Service Location(s). Customer agrees not to take any action that would directly or indirectly impair Vutiliti’s title to the Leased Equipment, or expose Vutiliti to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties. Following Vutiliti’s discontinuance of the Service(s) to the Service Location(s), Customer shall return the Leased Equipment to Vutiliti at Customer’s expense. If Customer fails to return the Leased Equipment within sixty
(60) days of the termination of this Agreement, Vutiliti retains the right, at its sole discretion, to (i) remove, at
Customer’s expense, the Leased Equipment including, but not limited to, that portion of the Leased Equipment located within the Service Location(s); or (ii) bill Customer for the value of any unreturned Leased Equipment.
3.6. Customer Equipment.3.6.1. Vutiliti shall have no obligation to install, operate, or maintain Customer Equipment. All Customer Equipment that Customer uses in connection with the Service(s) must be fully compatible with the Service(s). Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by Vutiliti’s employees or authorized contractors when the difficulty or trouble report results from Customer Equipment. Vutiliti shall not be responsible to the Customer if changes in any of the facilities, operations or procedures of Vutiliti utilized in the provision of Service render any Customer Equipment or other equipment provided by a Customer obsolete or require modification or alteration of such equipment or system or otherwise affect its use or performance.
3.6.2. Customer agrees to allow Vutiliti the rights to connect Vutiliti Equipment to the Customer Equipment and to send software, firmware, and/or other programs to the Customer Equipment. Customer warrants that Customer is either the owner of the Customer Equipment or that Customer has the authority to give Vutiliti access to the Customer Equipment. If Customer is not the owner of the Customer Equipment, Customer is responsible for obtaining any necessary approval from the owner to allow Vutiliti access to the Customer Equipment to perform the activities specified herein. In addition, Customer agrees to supply Vutiliti, upon Vutiliti’s request, the owner’s name, address and phone number and/or evidence that the owner has authorized Customer to grant access to Vutiliti to the Customer Equipment to perform the activities specified herein.
3.7. Unauthorized Devices or Tampering. Customer agrees not to repair or modify Vutiliti Equipment or attach any unauthorized device to Vutiliti Equipment. If Customer breaches this Section 3.7, Vutiliti may immediately terminate Customer’s Service(s) and recover from Customer any damages that result from Customer’s actions.
3.8. Compliance. Customer acknowledges that Vutiliti Equipment may transmit data using radio frequencies, and that the Customer is responsible for the proper configuration and legally compliant operation of Vutiliti Equipment pursuant to all applicable radio communication laws and regulations at each Service Location.
3.9. Administrative Website. Vutiliti may, at its sole option, make one or more administrative web sites available to Customer in connection with Customer’s use of the Service(s) (each an “Administrative Website”). Customer’s use of any Administrative Website is subject to the Terms and Conditions posted on such Administrative Website. In the event of a conflict between such Terms and Conditions and this Agreement, the terms of this Agreement will prevail.
ARTICLE 4. CHARGES, BILLING AND PAYMENT
4.1. Charges. Customer agrees to pay all charges associated with the Service(s), as set forth or referenced in the applicable Purchase Order(s) or invoiced by Vutiliti. These charges may include, but are not limited to shipping charges, recurring service charges, usage charges including without limitation charges for the use of Vutiliti Equipment, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated).
4.2. Third-Party Charges. Customer may incur charges from third-party service providers that are separate and apart from the amounts charged by Vutiliti. Customer agrees that all such charges, including all applicable taxes, are Customer’s sole responsibility. In addition, Customer is solely responsible for protecting the security of credit card information provided to others in connection with such transactions.
4.3. Payment of Bills. Except as set forth in Section 4.4 or as otherwise indicated herein or on the Purchase Order(s), Vutiliti will invoice Customer in advance on an annual basis for all recurring Service charges and fees arising under the Agreement. All other charges will be billed monthly in arrears. Customer shall pay to Vutiliti for all invoiced amounts within thirty (30) days after the date of the invoice. Payments may be made via ACH, check or credit card, subject to Section 4.6, below Any amounts not paid to Vutiliti within such period will be considered past due. If a Service Commencement Date is not the first day of a billing period, Customer’s next monthly invoice shall include a prorated charge for the Service(s), from the date of installation to the first day of the new billing. In certain cases, Customer may elect to bundle the Service(s) with services from third parties for which Vutiliti may provide billing services as the agent of the third party. Any such third-party charges shall be payable pursuant to any contract or other arrangement between Customer and the third party. Vutiliti shall not be responsible for any dispute regarding these charges between Customer and such third party. Customer must address all such disputes directly with the third party.
4.4. Payment for Equipment. Unless otherwise agreed to by the Parties in a written instrument signed by an officer of Vutiliti, the total cost of any Purchased Equipment and the down payment for any Leased Equipment shall be due in full, together with any applicable freight, installation or other charges or taxes, before such equipment is shipped to Customer.
4.5. Partial Payment. Partial payment of any bill will be applied to the Customer’s outstanding charges in the amounts and proportions as solely determined by Vutiliti. No acceptance of partial payment(s) by Vutiliti shall constitute a waiver of any rights to collect the full balance owed under the Agreement.
4.6. Payment by Credit Card. Vutiliti, in its sole discretion, may accept certain credit card payments for charges generated under the Agreement. If payment is processed through a credit card, a processing fee of three percent (3%) will be applied to the amount due, except where prohibited by applicable law. By providing Vutiliti with a credit card number, Customer authorizes Vutiliti to charge the card for all charges generated under this Agreement, until (i) this Agreement is terminated or (ii) Customer provides sixty (60) days prior notice that Vutiliti stop charging the credit card. If Vutiliti is unable to charge Customer’s credit card for any reason, Customer agrees to pay all amounts due, including any late payment charges or bank charges, upon demand by Vutiliti. Vutiliti may limit the option to pay by credit card to specific Service(s) or may discontinue acceptance of credit card payments in whole or in part upon thirty (30) days prior notice to Customer.
4.7. Credit Approval and Deposits. Initial and ongoing delivery of Service(s) may be subject to credit approval. Customer shall provide Vutiliti with credit information requested by Vutiliti. Customer authorizes Vutiliti to make inquiries and to receive information about Customer’s credit history from others and to enter this information in Customer’s records. Customer represents and warrants that all credit information that it provides to Vutiliti will be true and correct. Vutiliti, in its sole discretion, may deny the Service(s) based upon an unsatisfactory credit history. Additionally, subject to applicable regulations, Vutiliti may require Customer to make a deposit (in an amount not to exceed an estimated four-month’s charge for the Service(s)) as a condition to Vutiliti’s provision of the Service(s), or as a condition to Vutiliti’s continuation of the Service(s). The deposit will not, unless explicitly required by law, bear interest and shall be held by Vutiliti as security for payment of Customer’s charges. If the provision of Service to Customer is terminated, or if Vutiliti determines in its sole discretion that such deposit is no longer necessary, then the amount of the deposit will be credited to Customer’s account or will be refunded to Customer, as determined by Vutiliti.
4.8. Taxes and Fees. Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes or fees (however designated). Customer will be responsible to pay any Service fees, payment obligations and taxes that become applicable retroactively.
4.9. Disputed Invoice. If Customer disputes any portion of an invoice, Customer must pay the undisputed portion of the invoice and submit a written claim, including all documentation substantiating Customer’s claim, to Vutiliti for the disputed amount of the invoice by the invoice due date. The Parties shall negotiate in good faith to resolve the dispute. However, should the Parties fail to mutually resolve the dispute within sixty (60) days after the dispute was submitted to Vutiliti, all disputed amounts shall become immediately due and payable to Vutiliti. Under no circumstances may Customer submit a billing dispute to Vutiliti later than sixty (60) days following Customer’s receipt of the applicable invoice.
4.10. Past-Due Amounts. Any undisputed payment not made when due will be subject to a reasonable late charge equal to five percent (5%) of the past due amount and shall accrue interest at a rate equal to the lesser of
(i) eighteen percent (18%) per annum, or (ii) the highest rate allowed by law on the unpaid invoice. If Customer’s account is delinquent, Vutiliti may refer the account to a collection agency or attorney that may pursue collection of the past due amount and/or any Leased Equipment that Customer fails to return in accordance with the Agreement. If Vutiliti is required to use a collection agency, attorney, or other third-party service provider to collect any amount
owed by Customer or any unreturned Leased Equipment, Customer agrees to pay all reasonable costs of collection or other action. The remedies set forth herein are in addition to and not in limitation of any other rights and remedies available to Vutiliti under the Agreement or at law or in equity.
4.11. Rejected Payments. Except to the extent otherwise prohibited by law, Customer will be assessed a service charge up to the full amount permitted under applicable law for any check or other instrument used to pay for the Service(s) that has been rejected by the bank or other financial institution.
4.12. Fraudulent Use of Service(s). Customer is responsible for all charges attributable to Customer with respect to the Service(s), even if incurred as the result of fraudulent or unauthorized use of the Service(s). Vutiliti may, but is not obligated to, detect or report unauthorized or fraudulent use of Service(s) to Customer. Vutiliti reserves the right to restrict, suspend or discontinue providing any Service in the event of fraudulent use by Customer.
ARTICLE 5. RETURNS AND REFUNDS
5.1. Defective Products. Customer may reject any Defective Products, provided that Customer shall (i) within thirty (30) days of receipt of such alleged Defective Product, notify Vutiliti of its rejection and request a Return Merchandise Authorization number (“RMA”); and (ii) within 30 days of receipt of the RMA from Vutiliti return such Defective Product to Vutiliti using the shipping label that Vutiliti will provide in connection with such RMA. Customer’s request for an RMA must include (a) full identification of Defective Product(s) to be returned, and (b) specific description in reasonable detail of the alleged defect or problem. If Vutiliti determines that an alleged Defective Product is defective and properly rejected by Customer, Vutiliti shall, at its option, repair or replace such Defective Product, or accept a return for credit of such Defective Product. In the event that any alleged Defective Product is determined by Vutiliti not to be defective or to have been damaged by misuse, abuse or unauthorized repair, Vutiliti shall return such alleged Defective Product to Customer and Customer shall reimburse Vutiliti for all costs and expenses related to the inspection, repair, if any, and shipping of such Products to and from Vutiliti.
5.2. Undamaged Equipment. Customer may return new and undamaged Vutiliti Equipment to Vutiliti provided that (i) Customer contacts Vutiliti and requests an RMA within thirty (30) days of receipt of such Vutiliti Equipment; and (ii) within thirty (30) days of receipt of the RMA from Vutiliti returns such Vutiliti Equipment. Customer is responsible for all shipping and handling charges for returns of new and undamaged Vutiliti Equipment, and Customer bears the risk of loss during shipment; Vutiliti therefore strongly recommends that Customer fully insure return shipments against loss or damage and that Customer use a carrier that can provide proof of delivery for Customer’s protection. All returns of new and undamaged Vutiliti Equipment are subject to a fifteen percent (15%) restocking fee. Products returned by Customer must (a) utilize proper handling procedures in the packing and shipping of such Products, (b) be returned in the original and undamaged packaging, and (c) clearly display the RMA.
ARTICLE 6. TERM
6.1. Agreement Term. This Agreement shall terminate upon the expiration or other termination of the final existing Purchase Order entered into under this Agreement. The term of a Purchase Order shall commence on the Service Commencement Date and shall terminate at the end of the stated Service Term of such Service. Unless otherwise stated in these terms and conditions, if a Purchase Order does not specify a term of service, the Service Term shall be one (1) year from the Service Commencement Date.
6.2. Purchase Order Renewal. This Agreement and each applicable Purchase Order shall automatically renew for successive periods of one (1) year each (“Renewal Term(s)” and unless otherwise distinguished herein, is also referred to as “Service Term(s)”), upon the expiration of the initial Service Term (the “Renewal Date”), unless otherwise stated in these terms and conditions or prior notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the Renewal Date. Such termination shall be effective thirty (30) days after Vutiliti’s receipt of the termination notice. If this Agreement and any applicable Purchaser Orders are renewed automatically pursuant to this Section 6.2, Customer will be billed in advance for the Renewal Term on the Renewal Date pursuant to the payment terms set forth in Section 4.3.
6.3. Changes in Monthly Recurring Service Charges. Effective at any time after the end of the initial Service Term, Vutiliti may modify the monthly recurring charges for Service(s) subject to sixty (60) days prior written notice to Customer. Customer will have thirty (30) days from receipt of such notice to cancel the applicable Service without further liability. Should Customer fail to cancel within this timeframe, Customer will be deemed to have accepted the modified Service pricing. Nothing within this Section 6.3 is intended to limit Vutiliti’s ability to increase charges associated with the Service(s) as set forth in Article 4.
ARTICLE 7. TERMINATION OF AGREEMENT AND/OR A SALES ORDER
7.1. Termination for Convenience. Notwithstanding any other term or provision in this Agreement, Customer shall have the right to terminate a Purchase Order or this Agreement, in whole or part, at any time during the Service Term upon sixty (60) days prior notice to Vutiliti, and subject to payment to Vutiliti of all outstanding amounts due for the Service(s), any and all applicable Termination Charges, and the return of any and all Leased Equipment. Such termination shall be effective sixty (60) days after Vutiliti’s receipt of the termination notice.
7.2. Termination for Cause.7.2.1. If Customer is in breach of a payment obligation (including failure to pay a required deposit), and fails to make payment in full within ten (10) days after receipt of notice of default, or has failed to make payments of all undisputed charges on or before the due date on three (3) or more occasions during any twelve (12) month period, Vutiliti may, at its option, terminate this Agreement, terminate the affected Purchase Orders, suspend Service under the affected Purchase Orders, and/or require a deposit, advance payment, or other satisfactory assurances in connection with any or all Purchase Orders as a condition of continuing to provide the Service(s). However, Vutiliti will not take any such action as a result of Customer’s non-payment of a charge that is the subject of a timely billing dispute, unless the Parties have reviewed the dispute and determined in good faith that the charge is correct.
7.2.2. If either Party breaches any material term of this Agreement and the breach continues without remedy for thirty (30) days after written notice of default, the non-defaulting Party may terminate for cause this Agreement and any Purchase Order materially affected by the breach.
7.2.3. This Agreement, together with any or all Purchase Orders, may be terminated by either Party immediately upon notice if the other Party has become insolvent or involved in liquidation or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the benefit of its creditors.
7.2.4. Termination by either Party of this Agreement, or any Purchase Order, does not waive any other rights or remedies that it may have under this Agreement.
7.2. Effect of Expiration or Termination of the Agreement or a Purchase Order.7.3.1. Upon the expiration or termination of a Purchase Order or Service for any reason: (i) Vutiliti may disconnect the applicable Service; (ii) Vutiliti may delete all applicable data, files or other information stored on Vutiliti’s servers or systems; (iii) if Customer has terminated the Purchase Order and/or Service prior to the expiration of the Service Term for convenience, or if Vutiliti has terminated the Purchase Order and/or Service prior to the expiration of the Service Term as a result of material breach by Customer, Vutiliti may assess and collect from Customer applicable Termination Charges; (iv) Customer shall be responsible for the return of all applicable Leased Equipment and (a) until such time as the Leased Equipment is returned to Vutiliti, Vutiliti may continue to invoice Customer for the monthly fee applicable to such Leased Equipment and (b) if any returned Leased Equipment has been damaged and/or destroyed other than by Vutiliti or its agents, normal wear and tear excepted, Vutiliti may invoice Customer for the full replacement cost of the relevant Leased Equipment, or in the event of minor damage to the retrieved Leased Equipment, the cost of repair and (v) if used in conjunction with the terminated Service, Customer’s right to use applicable Licensed Software shall automatically terminate, and Customer shall be obligated to return any and all Licensed Software to Vutiliti.
7.3.2. Vutiliti shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) at Customer’s written request, promptly return to Customer or destroy all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer’s Confidential Information from all systems Vutiliti directly or indirectly controls, provided that Vutiliti may retain Customer Data and Customer’s Confidential Information in its backups, archives, and disaster recovery systems until such Customer Data and Confidential Information is deleted in the ordinary course. For clarity, Vutiliti’s obligations under this Section 7.3.2 do not apply to any Resultant Data, or any Customer Data associated with an end user of Customer or other third party that has consented to Vutiliti’s continued use of such Customer Data.
7.3.3. If Customer requests in writing at least ninety (90) days prior to the effective date of expiration or termination, Vutiliti shall, within ninety (90) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by Vutiliti, provided that Customer has at that time paid all Service fees then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Vutiliti’s services in transferring such Customer Data. Except as set forth in this Section 7.3.3, following the expiration or termination of this Agreement, Customer shall have no right to access, and Vutiliti shall have no obligation to store or maintain, Customer Data.
7.4. Regulatory and Legal Changes. The Parties acknowledge that the respective rights and obligations of each Party as set forth in this Agreement upon its execution are based on law and the regulatory environment as it exists on the date of execution of this Agreement. Vutiliti may, in its sole discretion, immediately terminate this Agreement, in whole or in part, in the event there is a material change in any law, rule, regulation, Force Majeure event, or judgment of any court or government agency, and that change materially impairs, in Vutiliti’s sole determination, Vutiliti’s ability to provide the Service(s) herein.
ARTICLE 8. WARRANTY
8.1. Standard Warranty. Vutiliti warrants to Customer that Vutiliti Equipment will be free from material defects in material and for the life of the Vutiliti Equipment (the “Warranty Period”), provided that the Warranty Period shall terminate upon the occurrence of any of the following: (a) Customer fails to timely renew the Purchase Order governing the Vutiliti Equipment, (b) the Vutiliti Equipment is moved from the location at which it is installed without the prior written consent of Vutiliti, or (c) the Vutiliti Equipment is repaired or modified without the prior written consent of Vutiliti. All other warranties are expressly disclaimed pursuant to Article 9 below.
8.2. Third-Party Equipment. Third-Party Equipment may constitute, contain, be contained in, incorporated into, attached to or packaged together with, Vutiliti Equipment. Third-Party Equipment is not covered by the warranty in Section 8.1 above. For the avoidance of doubt, VUTILITI MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY EQUIPMENT, INCLUDING BUT NOT LIMITED TO ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
8.3. Procedures. Vutiliti shall not be liable for a breach of the warranties set forth in Section 8.1 above unless: (i) Customer gives written notice of the defective products or services, as the case may be, reasonably described, to Vutiliti within thirty (30) days of the time when Customer discovers or reasonably ought to have discovered the defect; (ii) if applicable, Vutiliti is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 8.1 to examine such Vutiliti Equipment and Customer (if Vutiliti so requests) returns such Vutiliti Equipment to Vutiliti at Customer’s cost for the examination to take place there; and (iii) Vutiliti reasonably verifies Customer’s claim that the Vutiliti Equipment is defective.
8.4. Exceptions. Vutiliti shall not be liable for a breach of the warranty set forth in Section 8.1 above if: (i) Customer makes any further use of such Vutiliti Equipment after Customer gives such notice; (ii) the defect arises because Customer failed to follow Vutiliti’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Vutiliti Equipment; or (iii) Customer alters or repairs such Vutiliti Equipment without Vutiliti’s prior written consent.
8.5. Remedies. Subject to Sections 8.3 and 8.4, with respect to any such Vutiliti Equipment during the Warranty Period, Vutiliti shall, in Vutiliti’s sole discretion, either (i) repair or replace such Vutiliti Equipment (or the defective part thereof) or (ii) credit or refund the amounts paid by Customer for such Vutiliti Equipment provided that, if Vutiliti so requests, Customer shall, at Customer’s expense, return such Vutiliti Equipment to Vutiliti. THE REMEDIES SET FORTH IN THIS SECTION 8.5 SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND VUTILITI’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 8.1.
ARTICLE 9. LIMITATION OF LIABILITY; DISCLAIMER OF ADDITIONAL WARRANTIES; WARNINGS
9.1. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT, WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT, PROVIDED, HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS OWED FOR THE SERVICES, FOR ANY EQUIPMENT OR SOFTWARE PROVIDED BY VUTILITI OR FOR EARLY TERMINATION CHARGES. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATION SET FORTH IN ARTICLE 10 BELOW AND AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE ENTIRE LIABILITY OF VUTILITI AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUPPLIERS OR CONTRACTORS (“ASSOCIATED PARTIES”) FOR LOSS, DAMAGES AND CLAIMS ARISING OUT OF THE DELIVERY OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, THE PERFORMANCE OR NONPERFORMANCE OF THE SERVICES OR THE VUTILITI EQUIPMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY CUSTOMER TO VUTILITI DURING THE SIX-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND LIMITED TO THOSE EXPRESSLY DESCRIBED IN THIS AGREEMENT.
9.2. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES, VUTILITI EQUIPMENT, OR LICENSED SOFTWARE. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED TO THE MAXIMUM EXTENT ALLOWED BY LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, VUTILITI DOES NOT WARRANT THAT THE SERVICES, VUTILITI EQUIPMENT, OR LICENSED SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR FREE OF LATENCY OR DELAY, OR THAT THE SERVICES, VUTILITI EQUIPMENT, OR LICENSED SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES, VUTILITI EQUIPMENT, OR LICENSED SOFTWARE WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES.
9.3. VUTILITI MAKES NO WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE SERVICES, VUTILITI EQUIPMENT, OR LICENSED SOFTWARE FOR USE BY THIRD PARTIES.
9.4. IN NO EVENT SHALL VUTILITI, OR ITS ASSOCIATED PARTIES, SUPPLIERS, CONTRACTORS OR LICENSORS BE LIABLE FOR ANY LOSS, DAMAGE OR CLAIM ARISING OUT OF OR RELATED TO: (i) STORED, TRANSMITTED, OR RECORDED DATA, FILES, OR SOFTWARE; (ii) ANY ACT OR OMISSION OF CUSTOMER, ITS USERS OR THIRD PARTIES; (iii) INTEROPERABILITY, INTERACTION OR INTERCONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES OR NETWORKS PROVIDED BY CUSTOMER OR THIRD PARTIES; OR (iv) LOSS OR DESTRUCTION OF ANY CUSTOMER HARDWARE, SOFTWARE, FILES OR DATA RESULTING FROM ANY VIRUS OR OTHER HARMFUL FEATURE OR FROM ANY ATTEMPT TO REMOVE IT.
9.5. Disruption of Service. The Service(s) are not fail-safe and are not designed or intended for use in situations requiring fail-safe performance or in which an error or interruption in the Service(s) could lead to severe injury to business, persons, property or environment (“High-Risk Activities”). These High-Risk Activities may include, without limitation, vital business or personal communications, or activities where absolutely accurate data or information is required. Customer expressly assumes the risks of any damages resulting from High-Risk Activities. Vutiliti shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Service(s), directly or indirectly caused by, or proximately resulting from, any circumstances, including, but not limited to, causes attributable to Customer or Customer-Equipment; improper use or installation of Vutiliti Equipment; inability to obtain access to the Service Locations; failure of a communications satellite; loss of use of poles or other utility facilities; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightening, earthquake, wind, ice, extreme weather conditions or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation or delivery of the Service(s).
9.6. Customer’s sole and exclusive remedies under this Agreement are as expressly set forth in this Agreement. Certain of the above exclusions may not apply if the state in which a Service is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of Vutiliti and its affiliates and agents is limited to the maximum extent permitted by law.
ARTICLE 10. INDEMNIFICATION
10.1. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Vutiliti and its affiliates, officers, directors, employees, stockholders, partners, providers, independent contractors, agents, successors, and assigns (each, a “Vutiliti Indemnitee”) from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts (collectively, “Losses”) incurred by such Vutiliti Indemnitee and arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, “Claims”) that arise out of or result from, or are alleged to arise out of or result from:
10.1.1. Customer Data, including any use or processing of Customer Data by or on behalf of
Vutiliti in accordance with this Agreement;
10.1.2. any other materials or information (including any documents, data, specifications,
software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Vutiliti’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to
the extent prepared without any contribution by Vutiliti;
10.1.3. allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
10.1.4. negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer or any third party on behalf of Customer in connection with this Agreement.
10.2. Vutiliti Indemnification. Subject to Article 9, Vutiliti shall indemnify, defend, and hold harmless Customer from and against any and all Losses incurred by Customer resulting from any Claim by a third party (other than an Affiliate of Customer) that Customer’s use of the Services (excluding Customer Data and Third-Party Equipment) in accordance with this Agreement infringes or misappropriates such third party’s Intellectual Property Rights. The foregoing obligation does not apply to the extent that the alleged infringement arises from:
10.2.1. Third-Party Equipment;
10.2.2. Customer Data;
10.2.3. access to or use of the Vutiliti Materials in combination with any hardware, system, software, network, or other materials or service not provided by Vutiliti or specified for Customer’s use by Vutiliti;
10.2.4. modification of the Vutiliti Materials other than: (i) by or on behalf of Vutiliti; or (ii) with Vutiliti’s written approval in accordance with Vutiliti’s written specification;
10.2.5. failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Vutiliti; or
10.2.6. act, omission, or other matter described in Section 10.1.1, Section 10.1.2, Section 10.1.3, or Section 10.1.4, whether or not the same results in any Action against or Losses by any Vutiliti Indemnitee. If all or any portion of the Service(s) or the Vutiliti Equipment is determined in any such suit or proceeding to constitute infringement and its use is enjoined, Vutiliti may, at its option, (i) secure for Customer the ongoing right of Customer to use such infringing Service(s) or Vutiliti Equipment on the same terms as set forth in this Agreement or any applicable Purchase Order, (ii) replace such infringing Service(s) or Vutiliti Equipment with a suitable noninfringing replacement, (iii) modify such infringing Service(s) or Vutiliti Equipment so that it becomes noninfringing, or (iv), if Vutiliti determines, in its sole discretion, that options (i)–(iii) are not commercially reasonable, terminate this Agreement without liability to Customer.
10.3. Indemnification Procedure. Each Party entitled to indemnification under this Article 10 (the “Indemnified Party”) agrees to notify the other Party (the “Indemnifying Party”) promptly, in writing, of any Claims, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Claims. The Indemnifying Party shall assume the defense of any Claim with counsel of its own choosing, but which is reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case, and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any Claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such Claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 11. SOFTWARE AND SERVICE(S)
11.1. License. If and to the extent Customer requires the use of Licensed Software in order to use the Service(s) supplied under any Purchase Order, Customer shall have a personal, non-exclusive, non-transferable, and limited license to use the Licensed Software in object code only and solely to the extent necessary to use the applicable Service during the Service Term. Customer may not claim title to, or an ownership interest in, any Licensed Software (or any derivations or improvements thereto) and Customer shall execute any documentation reasonably required by Vutiliti, including, without limitation, end-user license agreements for the Licensed Software. Vutiliti and its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer other than a license to use the Licensed Software under the terms expressly set forth in this Agreement.
11.2. Restrictions. Customer agrees that it shall not: (i) copy the Licensed Software (or any upgrades thereto or related written materials) except as permitted by the express written consent of Vutiliti; (ii) reverse engineer, decompile, or disassemble the Licensed Software; (iii) sell, lease, license, or sublicense the Licensed Software; or (iv) except as set forth in Section 11.3 below, create, write, or develop any derivative software or any other software program based on the Licensed Software.
11.3. Applications. During the Term, Customer may develop and use a software application or software applications to be used in connection with the Service(s) (each such software application, an “Application”). An Application consists of (i) a client-side portion that resides on a computer or mobile device owned or controlled by Customer, and (ii) a server-side portion that will reside on Vutiliti’s cloud-based servers. Subject to Customer’s compliance with the terms and conditions of this Agreement, Vutiliti grants Customer, solely during the term of this Agreement, a non-exclusive, non-transferable, revocable license, without rights to sublicense, to incorporate libraries and APIs that are included in the Service(s) into Customer’s Application(s), to reproduce and distribute such libraries and APIs together with Customer’s Application(s) and to access, use, perform and display the Service(s) via the Internet, solely for use with Customer’s Application(s). Vutiliti reserves the right to monitor Customer’s Application(s), including content, images and information accessible on or from an Application (“Content”), and to remove or disable Content or Applications that Vutiliti, in its sole discretion, determines to be illegal, harmful, offensive, creating liability for Vutiliti or its service providers, or otherwise in violation of this Agreement or Vutiliti operating policies.
11.4. Updates. Customer acknowledges that the use of the Service(s) may periodically require updates and/or changes to certain Licensed Software resident in the Vutiliti Equipment or Customer Equipment. If Vutiliti has agreed to provide updates and changes, Vutiliti may perform such updates and changes remotely or on-site, at Vutiliti’s sole option and upon written notice to Customer. Customer hereby consents to, and shall provide free access for, such updates deemed reasonably necessary by Vutiliti.
ARTICLE 12. INTELLECTUAL PROPERTY RIGHTS IN THE SERVICE(S).
12.1. Vutiliti Materials. All right, title, and interest in and to the Vutiliti Materials, including all Intellectual Property Rights therein, are and will remain with Vutiliti. Customer has no right, license, or authorization with respect to any of the Vutiliti Materials except as expressly set forth in the Agreement. All other rights in and to the Vutiliti Materials are expressly reserved by Vutiliti. The copying, redistribution, reselling, bundling or publication of the Vutiliti Materials, in whole or in part, without express prior written consent from Vutiliti or other owner of such material, is prohibited. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Vutiliti an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
12.2. Customer Data. As between Customer and Vutiliti, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 12.3.
12.3. Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to Vutiliti to enforce this Agreement and exercise Vutiliti’s rights and perform Vutiliti’s obligations hereunder.
ARTICLE 13. CONFIDENTIAL INFORMATION AND PRIVACY
13.1. Disclosure and Use; Exceptions. From time to time during the Term, either Party may disclose or make available to the other Party its Confidential Information. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees and contractors who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder and provided that such employees and contractors are bound by confidentiality obligations at least as restrictive as those set forth in this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; (ii) necessary to disclose pursuant to the requirement of external financial auditors provided such auditors are bound to the same or substantially similar obligations regarding the treatment of confidential information as set forth herein; or (iii) to establish a Party’s rights under this Agreement, including to make required court filings. Promptly following the termination of the Agreement, but no later than five (5) days after the disclosing Party’s written request, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the receiving party has no obligation to return or destroy the Confidential Information backed up from a computer system in the ordinary course of the receiving party’s business provided that any such Confidential Information remains subject to all applicable obligations under this Agreement. The provisions of this Article 13 shall survive the termination of this Agreement.
13.2. Remedies. Notwithstanding any other Article of this Agreement, the non-breaching Party shall be entitled to seek equitable relief to protect its interests pursuant to this Article 13, including, but not limited to, injunctive relief.
13.3. Monitoring. Vutiliti shall have no obligation to monitor transmissions made in connection with the Service(s), however, Customer acknowledges and agrees that Vutiliti and its agents shall have the right to monitor any such transmissions from time to time and to use and disclose them in accordance with this Agreement, and as otherwise required by law or government request. For clarification, under no circumstances will Vutiliti monitor transmissions not made in connection with the Service(s).
ARTICLE 14. PROHIBITED USES
14.1. Resale. Except as otherwise provided herein, Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise utilize in conjunction with a third party (including, without limitation, in any joint venture or as part of any outsourcing activity) the Service(s) or any component thereof.
14.2. Use Policies. Customer agrees to ensure that all uses of the Vutiliti Equipment and/or the Service(s) installed at its premises (“use”) are legal and appropriate. Specifically, Customer agrees to ensure that all uses by Customer or by any other person (“user”), whether authorized by Customer or not, comply with all applicable laws, regulations, and written and electronic instructions for use. Furthermore, Customer agrees that it will not demonstrate or provide access to the Service(s) or the Vutiliti Equipment to competitors of Vutiliti, and that doing so will constitute a material breach of this Agreement. Vutiliti reserves the right to act immediately and without notice to terminate or suspend the Service(s) and/or to remove from the Service(s) any information transmitted by or to Customer or users, if Vutiliti (i) determines that such use or information does not conform with the requirements set forth in this Agreement, (ii) determines that such use or information interferes with Vutiliti’s ability to provide the Service(s) to Customer or others, (iii) reasonably believes that such use or information may violate any laws, regulations, or written and electronic instructions for use, or (iv) reasonably believes that Customer’s use of the Service interferes with or endangers the health and/or safety of Vutiliti personnel or third parties. Furthermore, the Service(s) shall be subject to one or more Acceptable Use Policies (“AUP”) that may limit use. The AUP and other policies concerning the Service(s) are posted on Vutiliti’s Website(s) at https://vutiliti.com/acceptable_use.html (or any successor URL) or on another website about which Customer has been notified, and are incorporated to this Agreement by reference. Vutiliti may update the AUP from time to time, and such updates shall be deemed effective seven (7) days after the updates are posted online, with or without actual notice to Customer. Vutiliti will provide notice to Customer of all such updates. Vutiliti’s action or inaction in enforcing acceptable use shall not constitute review or approval of Customer’s or any other users’ use or information.
14.3. Violation. Any breach of this Article 14 shall be deemed a material breach of this Agreement. In the event of such material breach, Vutiliti shall have the right to restrict, suspend, or terminate immediately any or all Purchase Orders, without liability on the part of Vutiliti, and then to notify Customer of the action that Vutiliti has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement.
ARTICLE 15. SERVICE CREDITS
15.1. Credit Allowances. Unless otherwise addressed in a service level agreement attached to this Agreement, Vutiliti will allow a Pro Rata credit against future payment of the net monthly recurring charge (exclusive of nonrecurring charges, other one-time charges, per call charges, measured charges, regulatory fees and surcharges, taxes, and other governmental and quasi-governmental fees) for a Service Interruption, except as specified below or as may otherwise be legally required (“Credit”). “Service Interruption” shall mean a break in transmission that renders the Service unusable. For the purposes of calculating a Credit allowance, the Service Interruption period begins when the Customer reports an interruption in the portion of the Service to Vutiliti, a trouble ticket is opened, and the Service is released to Vutiliti for testing and repair. The Service Interruption ends when the affected portion of the Service has been restored and Vutiliti has closed the trouble ticket. Service Interruption time does not include interruptions of less than thirty (30) minutes’ duration. Credits will be as follows:
|Length of Service Interruption||Amount of Credit|
|At least 4 hours and up to and
including 24 hours
|1 full day|
The total number of credit allowances per month shall not exceed the total monthly recurring charge for the affected Service. Credit allowances will not be made for less than one dollar (USD $1.00), unless required under applicable law. To qualify, Customer must request the Credit from Vutiliti within thirty (30) days of the Service Interruption.
15.2. Exceptions to Credit Allowances. Except as otherwise provided herein, a Service Interruption shall not qualify for the Credits set forth herein if such Service Interruption is related to, associated with, or caused by scheduled maintenance events; Customer actions or inactions; Customer-provided power or equipment; any third party not contracted through Vutiliti, including, without limitation, Customer’s users, third-party network providers; any power, equipment or services provided by third parties; or an event of force majeure as defined in this Agreement, unless otherwise provided under applicable law. The remedies set forth in this Article 15 shall be Customer’s sole and exclusive remedy for any Service Interruption in the Service(s), outage, unavailability, delay or other degradation in the Service(s) or any Vutiliti failure to meet the objectives of the Service(s).
ARTICLE 16. REPRESENTATIONS AND WARRANTIES
16.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party
16.1.1. it is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
16.1.2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
16.1.3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and
16.1.4. when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such party in accordance with its terms.
16.2. Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Vutiliti that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Vutiliti and processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable law.
ARTICLE 17. MISCELLANEOUS TERMS
17.1. Force Majeure. Neither Party shall be liable to the other Party for any delay, failure in performance, loss, or damage to the extent caused by force majeure conditions such as acts of God, fire, explosion, power blackout, cable cut, acts of regulatory or governmental agencies, unavailability of right-of-way, unavailability of services or materials upon which the Service(s) rely, or other causes beyond the Party’s reasonable control, except that Customer’s obligation to pay for Service(s) provided shall not be excused. Changes in economic, business or competitive condition shall not be considered force majeure events.
17.2. Assignment and Transfer. Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld. The foregoing notwithstanding, each Party may assign this Agreement to any Affiliate or successor in interest without Customer’s consent. All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party.
17.3. Export Law and Regulation. Customer acknowledges that any products, software, and technical information (including, but not limited to, services and training) provided pursuant to the Agreement may be subject to U.S. export laws and regulations, and any foreign use or transfer of such products, software, and technical information must be authorized under those regulations. Customer agrees that it will not use distribute, transfer, or transmit the products, software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations. If requested by Vutiliti, Customer also agrees to sign written assurances and other export-related documents as may be required for Vutiliti to comply with U.S. export regulations.
17.4. Notices. Except as otherwise provided in this Agreement, any notices or other communications contemplated or required under this Agreement, in order to be valid, shall be in writing and shall be given via personal delivery, overnight courier, or via U.S. Certified Mail, Return Receipt Requested. Notices to Customer shall be sent to the Customer billing address; notices to Vutiliti shall be sent to Vutiliti, Inc., 126 West Sego Lily Drive, Suite 150, Sandy, Utah 84070, Attention: Operations, with a copy to: BTJD, LLC, 3165 E. Millrock Drive, Suite 500, Salt Lake City, Utah 84121, Attention: Jeffrey Matson. All such notices shall be deemed given and effective on the day when delivered by overnight delivery service or certified mail.
17.5. Entire Understanding. The Agreement, together with all Purchase Orders, constitutes the entire understanding of the Parties related to the subject matter hereof. The Agreement supersedes all prior agreements, proposals, representations, statements, or understandings, whether written or oral, concerning the Service(s) or the Parties’ rights or obligations relating to the Service(s). Any prior representations, promises, inducements, or statements of intent regarding the Service(s) that are not expressly provided for in this Agreement are of no effect. Terms or conditions contained in any Purchase Order, or restrictive endorsements or other statements on any form of payment, shall be void and of no force or effect. In the event of a conflict between the terms and conditions of a Purchase Order and these Terms, these Terms shall control. Only specifically authorized representatives of Vutiliti may make modifications to this Agreement or this Agreement’s form. No modification to the form or this Agreement made by a representative of Vutiliti who has not been specifically authorized to make such modifications shall be binding upon Vutiliti. No subsequent agreement among the Parties concerning the Service(s) shall be effective or binding unless it is executed in writing by authorized representatives of both Parties.
17.6. Tariffs. Notwithstanding anything to the contrary in the Agreement, Vutiliti may elect or be required to file tariffs with regulatory agencies for certain Service(s). In such event, the terms set forth in the Agreement may, under applicable law, be superseded by the terms and conditions of the Tariffs. Without limiting the generality of the foregoing, in the event of any inconsistency with respect to rates, the rates and other terms set forth in the applicable Purchase Order shall be treated as individual case based arrangements to the maximum extent permitted by law, and Vutiliti shall take such steps as are required by law to make the rates and other terms enforceable. If Vutiliti voluntarily or involuntarily cancels or withdraws a Tariff under which a Service is provided to Customer, the Service will thereafter be provided pursuant to the Agreement and the terms and conditions contained in the Tariff immediately prior to its cancellation or withdrawal. In the event that Vutiliti is required by a governmental authority to modify a Tariff under which Service is provided to Customer in a manner that is material and adverse to either Party, the affected Party may terminate the applicable Purchase Order upon a minimum thirty (30) days’ prior written notice to the other Party, without further liability.
17.7. Construction. In the event that any portion of this Agreement is held to be invalid or unenforceable, the Parties shall replace the invalid or unenforceable portion with another provision that, as nearly as possible, reflects the original intention of the Parties, and the remainder of this Agreement shall remain in full force and effect.
17.8. Survival. The rights and obligations of either Party that by their nature would continue beyond the expiration or termination of this Agreement or any Purchase Order, including without limitation representations and warranties, indemnifications, and limitations of liability, shall survive termination or expiration of this Agreement or any Purchase Order.
17.9. Archive Copies. Vutiliti may, from time to time, at its own discretion, and for the convenience of the Customer, provide an archive copy of this Agreement with any sales quote, Purchase Order, packing slip, or other communication. Archive copies do not replace or supersede the original executed draft of this Agreement. Unless otherwise stated in writing by Vutiliti, archive copies are not intended to be signed by either Party hereto, and signing an archive copy shall not reset the Effective Date or terms of this Agreement or have any other legal effect.
17.10. Choice of Law. The laws of the state of Utah shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by federal law.
17.11. No Third-Party Beneficiaries. This Agreement does not expressly or implicitly provide any third party (including users) with any remedy, claim, liability, reimbursement, cause of action, or other right or privilege.
17.12. No Waiver. No failure by either Party to enforce any right(s) hereunder shall constitute a waiver of such right(s).
17.13. Independent Contractors. The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
17.14. Article Headings. The article headings used herein are for reference only and shall not limit or control any term or provision of this Agreement or the interpretation or construction thereof.
17.15. Compliance with Laws. Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement.
- 5/5/2020: Updated to Terms and Conditions
- 3/3/2017: Published Terms of Service