Terms & Conditions
Virtual Food Hub Master Subscription Agreement
Virtual Food Hub (VFH) and Customer hereby agree as follows:
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.
BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE; BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT; OR, BY USING SUCH SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU”OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor or You intend to share with a direct competitor except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
The Virtual Food Hub reserves the right, in its sole discretion, to modify or discontinue, temporarily or permanently this Agreement including the Fees, at any time and without prior notice. Modification of this Agreement in a material manner will be posted on the Site, update the “last updated” date notated in this Agreement, and/or provide You with other notice of the modification. You should periodically review this Agreement so that you are aware of any changes to which you are bound. Your continued use of the Platform after any such modification constitutes your acceptance of the revised Agreement.
This Agreement was last updated on May 15, 2019. It is effective between You and Us as of the date of Your accepting this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means VFH services or functionality that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Content” means information obtained by VFH from publicly available sources or third-party content providers and made available to You through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.
“Customer” means party conducting business with Virtual Food Hub
“Documentation” means the applicable documentation, and its usage guides and policies, as updated from time to time, accessible by contacting email@example.com.
“VFH” means Virtual Food Hub. VFH is a D.B.A of Liquid UPC Corp.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Non-VFH Application” means a Web-based, mobile, offline or other software process or functionality that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You.
“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addendum and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Free Services” means Services that VFH makes available to You free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
“Purchased Services” means Services that You or Your Affiliate purchase under an Order Form, as distinguished from Free Services or those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under an Order Form or provided to You free of charge (as applicable) or under a free trial, and made available online by Us. “Services” exclude Content and Non-VFH Applications.
“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by You to use a Service, for whom You have purchased a subscription (or in the case of any Services provided by Us without charge, for whom a Service has VFHn provisioned), and to whom You (or, when applicable, We at Your request) have supplied a user identification and password (for Services utilizing authentication). Users may lude, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
“We,” “Us” or “Our” means the Virtual Food Hub company described in Section 13 (Whom You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity which have entered into Order Forms.
“Registration” means, a transaction online conducted by a website visitor or system admin. Event, Marketing, Reservations, bookings are all considered Registration Transactions.
“Your Data” means electronic data and information submitted by or for You to the Services, excluding Content and Non-VFH Applications.
2. FREE TRIAL AND FREE SERVICES
2.1 Free Services. VFH may make Free Services available to You. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this Section 2.1 (Free Services) and any other portion of this Agreement, this section shall control. Please note that Free Services are provided to you without charge up to certain limits as described in the Documentation and or Order Form. Usage over these limits requires your purchase of additional resources or services. You agree that VFH, in its sole discretion and for any or no reason, may terminate your access to the Free Services or any part thereof. You agree that any termination of your access to the Free Services may be without prior notice, and you agree that VFH will not be liable to you or any third party for such termination. You are solely responsible for exporting Your Data from the Free Services prior to termination of Your access to the Free Services for any reason, provided that if We terminate your account, except as required by law, We will provide you a reasonable opportunity to retrieve Your Data.
NOTWITHSTANDING SECTIONS 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND 10.1 (INDEMNIFICATION BY US), THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND VFH SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE FREE SERVICES. WITHOUT LIMITING THE FOREGOING, VFH AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE FREE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO VFH AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER
3. OUR RESPONSIBILITIES
3.1 Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this Agreement and any applicable Order Forms, (b) provide applicable VFH standard support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which We shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Non-VFH Application, or denial of service attack.
3.2 Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will lude, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 8.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing. Except with respect to a Free Service, to the extent that VFH processes any Personal Data contained in Customer Data, on Customer’s behalf, in the provision of the Services, which are hereby operated by reference, shall apply and the parties agree to comply with such terms.
3.3 Customer’s use of non-conforming data. A) errors and malfunction caused by any systems or programs not supplied by VFH. For the avoidance of doubt, updates to the Software are subsequent releases to the standard Virtual Food Hub products, excluding Deliverables. VFH reserves the right to charge Customer for any reintegration work required to make Deliverables compatible with future versions/releases.
3.4 Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
3.5 Beta Services. From time to time, we may make Beta Services available to You at no charge. You may choose to try such Beta Services or not in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement, however, all restrictions, Our reservation of rights and Your obligations concerning the Services, and use of any related Non-VFH Applications and Content, shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
NOTWITHSTANDING SECTIONS 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND 10.1 (INDEMNIFICATION BY US), THE BETA SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND VFH SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE FREE SERVICES. WITHOUT LIMITING THE FOREGOING, VFH AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE BETA SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE BETA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE BETA SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 11.1 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO VFH AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE BETA SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER
4. USE OF SERVICES, CONTENT, CUSTOMER DATA; STATISTICAL INFORMATION
4.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.
4.2 Usage Limits. Services and Content are subject to usage limits, including, for example, the quantities specified in Order Forms and Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Service or Content. If You exceed a contractual usage limit, we may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).
4.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Your Data, the means by which You acquired Your Data and Your use of Your Data with our Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-VFH Applications with which You use Services or Content.
4.4 Usage Restrictions. You will not (a) make any Service or Content available to anyone other than Users, or use any Service or Content for the benefit of, anyone other than You, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or lude any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-VFH Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-VFH Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use of any of Our Services in a manner that violates our agreement, or to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, or (k) disassemble, reverse engineer, or decompile a Service or Content, or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service or (4) determine whether the Services are within the scope of any patent. Any use of the Services in breach of this Agreement, Documentation or Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of Our services, may result in Our immediate suspension of the Services, however, We will use commercially reasonable efforts under the circumstances to provide You with notice.
4.5 Statistical Information. VFH may monitor Customer’s use of the Subscription Services and compile Customer Data with other data in an aggregate and anonymous manner to derive statistical and performance information related to the provision and operation of the Subscription Services and may make such information publicly available, provided that such information does not lude any data that would enable the identification of Customer or Customer Data, or the disclosure of Customer Confidential Information. VFH retains all rights, title and interest in and to such statistical and performance information.
4.6 Removal of Content and Non-VFH Applications. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If We receive information that a Non-VFH Application hosted on a Service by You may violate Our agreement or applicable law or third-party rights, We may so notify You and in such event You will promptly disable such Non-VFH Application or modify the Non-VFH Application to resolve the potential violation. If You do not take required action in accordance with the above, We may disable the applicable Content, Service and/or Non-VFH Application until the potential violation is resolved.
4.8 Email Marketing. Customer agrees that its use of the Service shall at all times be in compliance with applicable local, state, national, and international laws and regulations and VFH policies. A) Customer’s use of the Service to send commercial email messages, including invitations, reminders and confirmations (provided no clear exception applies under CAN-SPAM or other applicable law), must contain an “unsubscribe” or “opt-out” link that allows subscribers to remove themselves from Customer’s email messages. Customer acknowledges that Virtual Food Hub provides such a link by default in Virtual Food Hub-generated emails, and Customer agrees it will not, and will not instruct or permit others acting on its behalf, to hide, disable, or remove the opt-out link from emails Customer transmits using the Service. B) Customer will process any “unsubscribe” or “opt-out” requests it receives as soon as reasonably practicable and no later than ten (10) days after submission and will update its email lists and address books to reflect such requests. C) Customer’s messages sent using the Services must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out of receiving more commercial email from Customer. D) Customer’s messages also must accurately identify it as the sender, lude a valid and current postal address, and comply in all other respects with applicable email marketing and advertising law. Customer will not send commercial email messages using domains by proxy.
5.1 We or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-VFH Applications and implementation and other consulting services. Any acquisition by You of such products or services, and any exchange of data between You and any Non-VFH provider, product or service is solely between You and the applicable Non-VFH provider. We do not warrant or support Non-VFH Applications or other Non-VFH products or services, whether or not they are designated by Us as “certified” or otherwise unless expressly provided otherwise in an Order Form.
5.2 Non-VFH Applications and Your Data. If You choose to use a Non-VFH Application with a Service, You grant Us permission to allow the Non-VFH Application and its provider to access Your Data as required for the interoperation of that Non-VFH Application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such Non-VFH Application or its provider.
5.3 Interoperation with Non-VFH Applications. The Services may contain features designed to interoperate with Non-VFH Applications. To use such features, You may be required to obtain access to such Non-VFH Applications from their providers and may be required to grant Us access to Your account(s) on such Non-VFH Applications. We cannot guarantee the continued availability of such Service features, and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-VFH Application ceases to make the Non-VFH Application available for interoperation with the corresponding Service features in a manner acceptable to Us.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1 Fees. You will pay all fees specified in Order Forms, subscription or membership. Except as otherwise specified herein or in an Order Form,(i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
6.2 Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 13.2 (Term of Purchased Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
6.3 Overdue Charges. If any invoiced or order amount is not received by Us by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 2% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment). Overdue charges based on non-sufficient funds will be issued a non-refundable charge per instance of $45. If amount due is late, a $75 administrative fee may be chargeable at the discretion of Virtual Food Hub.
6.4 Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. Other than for customers paying by credit card or direct debit whose payment has VFHn declined, We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 13.2 (Manner of Giving Notice) for billing notices, before suspending services to You.
6.5 Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
6.6 Taxes. Our fees do not lude any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our company, property and employees. You understand and agree that You are solely responsible for determining in any tax setup within the technology (i) your applicable tax reporting requirements, and (ii) the taxes that should be included, and for including taxes to be collected or obligations relating to applicable taxes in postings. You are also solely responsible for remitting to the relevant authority any taxes included or received by you.
6.7 Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
7. PROPRIETARY RIGHTS AND LICENSES
7.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our Affiliates, Our licensors and Content Providers reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2 Access to and Use of Content. You have the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
7.3 License to Host Your Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, copy, display and use any Non-VFH Applications and program code created by or for You using a Service or for use by You with the Services, and Your Data, each as reasonably necessary for Us to provide, and ensure proper operation of, our Services and associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to any of Your Data, Non-VFH Application or such program code.
7.4 License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Our and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Our or Our Affiliates’ services.
8.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information ludes Your Data; Our Confidential Information ludes the Services and Content; and Confidential Information of each party ludes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not lude any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
8.2 The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and(ii)except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, We may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-VFH Application Provider to the extent necessary to perform Our obligations to You under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. SECURITY: STANDARDS, SAFEGUARDS AND AUDITS
9.1 Payment Cards. VFH shall establish and maintain safeguards against the destruction, loss or alteration of payment cards which is in the possession of VFH and stored in a VFH platform by implementing the applicable information security controls as set out in the then current version of the Payment Card Industry Data Security Standard (“PCI”), or the immediately preceding version of PCI DSS to the extent still permitted by PCI authorities).
9.2 Personal Data. VFH shall establish and maintain commercially reasonable safeguards against the unauthorized destruction, disclosure or alteration of Customer personal data which is in the possession of VFH.
9.3 Security - Customer will not: (a) breach or attempt to breach the security of the Service or any network, servers, data, computers or other hardware relating to or used in connection with the Service, or any third party that is hosting or interfacing with any part of the Service; or (b) use or distribute through the Service any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Service or the operations or assets of any other customer of VFH or any third party. Customer will comply with the user authentication requirements for use of the Software. Customer is solely responsible for monitoring its authorized users’ access to and use of the Software. VFH has no obligation to verify the identity of any person who gains access to the Software by means of an access ID. Any failure by any authorized user to comply with the Agreement shall be deemed to be a material breach by Customer, and VFH shall not be liable for any damages occurred by Customer or any third party resulting from such breach. Customer must immediately take all necessary steps, including providing written notice to VFH, to effect the termination of an access ID for any authorized user if there is any compromise in the security of that access ID or if unauthorized use is suspected or has occurred.
10. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
10.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so. You acknowledge that any software may operate with errors, especially when customized to the needs of the licensee.
10.2 Our Warranties. We warrant that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Your Data, (b) We will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-VFH Applications” section above, We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Your exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
10.3 General Remedies. We represent to You that: (1) during the Warranty Period of 30 days upon release by You, the Software shall operate without any Errors, known to Us at the time of delivery; and (2) upon notification to Us during the Warranty Period of any Errors, We will, during its normal business hours and at no cost to Licensee, use reasonable efforts to correct such Errors which are reproducible and verifiable by Us, excluding any Errors caused by uses of the Software which were not in accordance with the Specifications. Your sole remedy during the Warranty period is the correction of errors without any monetary refund or payments. Your sole remedy after the Warranty period is the correction of errors without any monetary refund or payments, if not expressively stated otherwise herein.
10.4 Definitions of Remedies. Server downtime. Extended server downtime is defined as any failure of the web server to pass coming or outgoing TCP-IP requests for more than 10 minutes. Scheduled downtime during off-business hours and downtime caused by network unavailability beyond Us or Third Party Hosting’s control, or outside the immediate web server are not defined as server downtime. Extended server downtime shall be calculated by pinging HTTP server every 5 minutes in 30-second thresholds and retrieving HTTP header. A failure of the server to respond to two consecutive HTTP tests is considered the start of downtime until a successful HTTP header has VFHn retrieved. We shall receive log and discount on the subsequent invoice upon request within support task. No regular logs are provided. No other remedies apply. Escalation requires a response within one business day. A response is defined as any type of communication (phone call, recorded message, email, SMS) sent to assigned project manager from You by Us or assigned agent without acknowledgment of receipt. The content of the communication is defined as either a (1) status update, or a (2) confirmation about completion. A response is not defined as a solution to the problem. A business day is defined as 24 hours past the receipt of the escalation request plus the remaining hours to 5 p.m. EST. Failure to respond as set forth herein shall entitle You to request a discount of $10 per delayed hour to be deducted from subsequent license invoice as sole remedy. The discount cannot exceed the monthly licensing fee. Server Availability. The monthly average server availability as described in the Order Form is estimated at 99.5%. Should the monthly average server be lower than stated average, or availability not meet Your requirements, Your sole remedy is to request a hosting upgrade. Additional fees apply.
10.5 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
11. MUTUAL INDEMNIFICATION
11.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a settlement approved by Us in writing of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties under “VFH Warranties” above, (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that our Services are the basis of the Claim Against You; (2) a Claim Against You arises from the use or combination of our Services or any part thereof with software, hardware, data, or processes not provided by Us, if our Services or use thereof would not infringe without such combination; (3) a Claim Against You arises from Services under an Order Form for which there is no charge; or (5) a Claim Against You arises from Content, a Non-VFH Application or Your use of the Services in violation of this Agreement, the Documentation or applicable Order Forms.
11.2 Indemnification by You. You will defend Us and Our Affiliates against any claim, demand, suit or proceeding made or brought against Us by a third party alleging that ( a ) any of Your Data or Your use of Your Data with our Services, (b) a Non-VFH Application provided by You, or (c) the combination of a Non-VFH Application provided by You and used with Our Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Us”), and You will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a settlement approved by You in writing of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us,(b)give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
11.3 Exclusive Remedy. This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 10.
12. LIMITATION OF LIABILITY
12.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST IDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR AND YOUR AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
12.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE VFHN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
13. TERM AND TERMINATION
13.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have VFHn terminated.
13.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term will increase by up to 25% above the applicable pricing in the prior term unless We provide You notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Our applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
13.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
13.4 Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 13.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 13.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
13.5 Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Your Data available to You for export or download as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide any Your Data, and as provided in the Documentation will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control, unless legally prohibited.
13.6 Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Your Data Portability and Deletion,” “Removal of Content and Non-VFH Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
14. WHOM YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
14.1 General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and which court have jurisdiction over any such dispute or lawsuit. All legal or dispute-related notices will be sent by first class mail or express delivery, if to Virtual Food Hub, attention Legal Department, at 401 East Las Olas Blvd., Suite 130-195, Fort Lauderdale, 33301, U.S.A, and if to Customer, to Customer’s account representative and address on record in Virtual Food Hub’s account information or such other addresses as either Party may designate in writing from time to time.
14.2 Governing Law. Unless specifically set forth in the applicable Order (i) any action, claim, or dispute between the Parties will be governed by Florida law, excluding its conflicts of law provisions, and controlling U.S. federal law; and (ii) the Parties agree to the exclusive jurisdiction of and venue in the state and federal courts in Broward County, respectively. Except for actions for nonpayment or breach of either Party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either Party more than 2 years after the cause of action has accrued.
14.3 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant Services system administrator designated by You.
14.4 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regards to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
14.5 No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other liquidupc.com company. Subject to any permitted Assignment under Section 14.4, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
15. GENERAL PROVISIONS
15.1 Export Compliance. The Services, Content, other technology We make available and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or Content in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
15.2 Anti-Corruption. You agree that You have not received or VFH offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at firstname.lastname@example.org.
15.3 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or consistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.
15.4 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (together with all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees allocable to the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
15.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
15.6 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
15.7 Amendment/ No Waiver. The Agreement may be amended only by written agreement signed by the Parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intent of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The failure of either Party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing.
15.8 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
15.9 Compliance with Laws. Each Party agrees to abide by all applicable federal, state, and local laws and regulations in the performance of this Agreement.
15.10 Force Majeure. Neither Party will be in default or otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond its reasonable control, including any act of God, criminal acts, distributed denial of service attacks, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, or any act or failure to act by the other Party, its employees, agents, or contractors. The parties will promptly inform and consult with each other as to any of the above causes that, in their judgment, may or could be the cause of a substantial delay in the performance of this Agreement.
15.11 Press Releases; Customer List. Customer may not issue any press release or other public statement regarding the terms or subject matter of any agreement or relationship with Virtual Food Hub without Virtual Food Hub’s prior written consent. Customer agrees that Virtual Food Hub may use Customer’s name or logo to identify Customer as a customer of Virtual Food Hub on Virtual Food Hub’s website, in a press release reporting Virtual Food Hub’s financial results, and as a part of a general list of Virtual Food Hub’s customers for use and reference in Virtual Food Hub’s corporate and marketing literature. The permissions granted under this paragraph are revocable by a Party in its reasonable discretion.
15.12 Professional Services. A) Virtual Food Hub will perform the mutually agreed upon Professional Services for Customer described in one or more SOW or Order Forms as the parties may agree to in writing from time to time. For purposes of this Agreement, “Professional Services” shall mean data conversion, data mapping, implementation, site planning, configuration, integration and deployment of Service, training, project management and other consulting services. Each Order Form or SOW, once executed by the authorized representatives of the parties, shall become a part of the Agreement. Either party may propose a change order to add to, reduce or change the Professional Services ordered in the Order Form or SOW. Each change order shall specify the change(s) to the Professional Services or deliverables, and the effect on the time of performance and on the fees owed to Virtual Food Hub, due to the change. Once executed by both parties, a change order shall become a part of the Order Form or SOW. B) Ownership and Limited Right. All intellectual property rights in the results of the Professional Services including (without limitation) all deliverables, contents, documentation, training materials, modifications and all intellectual property embodied herein (collectively, the “Deliverables”) shall vest solely and absolutely in Virtual Food Hub or its licensors. Virtual Food Hub grants Customer, subject to timely payment of applicable fees and charges, and subject to the restrictions set forth in Section 3.1 hereof, a personal, nonexclusive, non-transferable right to, for the Term, use the Deliverables provided under Professional Services solely in connection with its use of the Service.
15.13 Use of Customer’s Name and Trademarks. Customer hereby grants VFH a non-exclusive right and license to use Customer’s name and such of Customer’s trade names, trademarks, and service marks (collectively, “Customer’s Marks”) as are listed on Order Form or otherwise provided to VFH in connection with this Agreement: (a) on VFH’s own websites, (b) in printed and online advertising, publicity, directories, newsletters, and updates describing VFH’s Services, and (c) in applications reasonably necessary and ancillary to the foregoing. Customer may use Virtual Food Hub’s name, trademarks and service marks (collectively, “VFH’s Marks”) in advertising and publicity in conjunction with the offering of User Content via VFH, provided that Customer shall submit copy to email@example.com for its prior written approval, and provided further that under no circumstances shall such use imply that VFH endorses, sponsors, certifies, approves or is responsible for User Content.
15.14 DMCA Takedown Notice. To the best of VFH’s knowledge, all material published by VFH on its web pages and other media properties, are done in full agreement with the original copyright owners (be that Virtual Food Hub or another party). If Customer comes across a situation where Customer suspects that this may not be the case, in accordance with the Digital Millennium Copyright Act (DMCA), Customer will contact VFH as follows: Virtual Food Hub, ATTN: General Counsel 401 E Las Olas, Suite 130-195 Fort Lauderdale, Florida 33322, firstname.lastname@example.org.
15.15 Repeat Infringers. It is Virtual Food Hub’s policy in appropriate circumstances to disable and/or terminate the accounts of Customers who repeatedly infringe copyrights, trademarks or services marks.
15.16 Adult Material Policy. VFH maintains a strict No Adult Material Policy. Any presentation of material that is pornographic or obscene in nature, as determined in VFHs sole discretion, shall not be allowed and will subject to immediate termination. By way of example and not limitation, “Adult Material” ludes any of the following: any photos or videos showing frontal nudity on either men or women; any photos or videos showing any sexually explicit nudity; any audio clips or text containing sexually explicit material; any sites with direct links to other sites containing such material; and any site engaged in the sale of sexually explicit items.
15.17 Training. It is Customer’s responsibility to ensure that all appropriate users receive initial training services sufficient to enable Customer to effectively use the Software, as applicable. Failure to do so could result in additional fees if service requests are deemed excessive as a result of insufficient training, at Virtual Food Hub’s discretion. Virtual Food Hub further reserves the right to suspend or discontinue Support hereunder (without terminating this Agreement) in the following circumstances: (i) Customer’s requests for Support are overly excessive or duplicative of prior requests for issues that have already VFHn addressed by Virtual Food Hub; (ii) Customer’s requests relate to the general use of the Services that are addressed via Virtual Food Hub’s training tools and resources or which a person, using reasonable efforts, can perform after completing the Virtual Food Hub’s training tools or resources; or (iii) Customer is abusive or offensive toward Virtual Food Hub’s personnel.
15.18 Software & Environment Access. VFH will provide Customer online access to and use of the Software via the Internet by use of a Customer-provided browser. The Software will be hosted on a server that is maintained by VFH or its designated third-party supplier or data center. Customer is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the Software, including but not limited to Internet access and adequate bandwidth.
15.19. Support. Support services provided by VFH as part of General Service lude the following unless stated in the Order Form. (i) technical support and workarounds so that the Software operates in material conformance with the Documentation, and (ii) the provision of updates thereto, if and when available, all of which are provided under Virtual Food Hub Support policies (as may be amended by Virtual Food Hub from time to time at its sole discretion) in effect at the time the Support services are provided (“Support”). Updates may lude bug fixes, patches, error corrections, minor and major releases, non-new platform changes, or modifications or revisions that enhance existing performance. Updates exclude new products, modules or functionality for which VFH generally charges a separate fee. For purposes of this Agreement, “Documentation” shall mean the user instructions, release notes, manuals and online help files as updated by VFH from time to time, in the form generally made available by VFH, regarding the use of the Service. For the avoidance of doubt, Support excludes Professional Services. VFH is under no obligation to provide Support with respect to: (i) Software that have VFHn altered or modified by anyone other than VFH or its licensors; (ii) Software used other than in accordance with the terms of this Agreement; (iii) discrepancies that do not significantly impair or affect the operation of the Software; (iv) errors or malfunction caused by Customer’s failure to comply with the minimum system requirements as provided by VFH.
16 WEBSITE DESIGN – Non VFH Content Management System (CMS)
16.1 Design. The design of the website shall be in substantial conformity with the material provided to US by YOU. Website consultation will be provided according to the number of coordination steps outlined for the plan purchased by YOU in the Order Form. Website text shall be supplied by YOU unless copywriting services have VFHn purchased. Development of web pages shall occur on your selected Hosting Service with a third party. All technical issues including hosting, servers, CMS, plugins not managed by VFH are the client’s responsibilities unless otherwise agreed to by the parties.
16.2 Coordination Steps. Customer understands that submissions for website development are limited to the number of coordination steps as provided in the Order Form. YOU are encouraged to provide as much instruction and direction as possible with each submission.
16.3 Accessibility of Website During Construction. Throughout the development of the prototype and the final website, the website shall be accessible to Customer through the CMS. Until YOU approved the final website, none of the web pages for the website will be accessible to end users.
16.4 Completion Date. US and YOU shall work together to complete the website in a commercially reasonable manner. YOU shall supply to US complete text and graphical content of all web pages contracted for within four (4) weeks of the date of the Order unless otherwise agreed to by the parties. If YOU do not submit the complete text and graphical content within six (6) weeks after the Order, an additional continuation fee of 5% of the total Order Form price shall be assessed to YOU each month until the website is published.
16.5 Website Maintenance. Unless and until a website maintenance plan is purchased on the Order Form, any Services purchased from VFH do not lude website maintenance. If Customer or an agent other than VFH attempts updating Customer’s pages, any time to repair any such web pages shall be assessed at an hourly rate, as determined by VFH. Any other changes requested by Customer shall be billed at the hourly rates set forth in the Order Form. This rate shall also govern additional work authorized beyond the maximums specified in the Order Form for other services such as webpage design, editing, modifying product pages and databases in an online store, and art, photo, graphics or any other related services.
16.7 Website Fees. The total price for all of the design and development work (excluding post-approval modifications not implemented by Customer) shall be set forth in the Order Form (the “Development Fee”). This price covers all work for the Order Form (excluding post-approval modifications not implemented by Customer). Unless otherwise stated in the Order Form, the Development Fee is due and payable to VFH upon sign off. VFH shall have no obligation to perform any work until payment is received and such funds are cleared from any such financial institution.
17 Lease Agreements
You understand and agree that Virtual Food Hub is not a real estate broker and does not offer real estate brokerage services. We provide technology to allow You to manage your business based on your state and local laws.
We recommend you consult with a reputable business resource prior to entering into any Lease agreements for the purposes of Leasing Space. Any Lease agreements are between the You and Your clients and are not the responsibility of the Virtual Food Hub.
18 Payment Processors
You have an option to elect you to use Your payment processor and services or request an introduction to our partnered “third-party” payment processor services. Utilizing our partner’s services, You are subject to the partner’s terms of service, agreements and privacy policies. As a condition of Virtual Food Hub configuring payment processing services and acting as a liaison to our partners, you agree to provide accurate and complete information about Your business, and you authorize Us to share information related to Your business in the interest of a proper introduction. You will be responsible to meet all guidelines and agreements provided by Third-Party partner.
19 Community / Networking Websites
19.1 Virtual Food Hub provides a networking platform (the “technology”) which is an online technology website that connects the owners of the business (“Listing Owner”) with visitors (“Prospects”).
19.2 These terms apply to all services provided or arranged by us to Listing Owner and/or to Prospects (“Services”). Virtual Food Hub does not own, control or manage any businesses listed on the Technology without the permission from the business owner.
19.3 In these terms “you” refers to Listing Owner and/or Prospects (as appropriate).
19.4 Creating an account on the Technology, you are agreeing to these terms. The terms may be varied at any time by posting amended terms on the Technology.
19.5 These terms relate to your use of the Technology once you have created an account but do not relate to your use of the website otherwise.
19.6 Creating a Listing Account
19.7 To use VFH Services, you are required to register and create an account on the Technology. In so doing, you will create a profile (“Profile”).
19.8 To create an account you must: be at least 18 years of age; be a business customer; and be authorized by the company or organization that you work for to create an account, create a Listing, or make an inquiry about a Listing.
19.9 VFH may suspend or terminate your access to the Technology at any time with or without notice.
19.10 To create an account you will be required to submit specific information about your company including your name, email address, telephone number, physical address, and information about the company or organization you work for.
19.11 Your Profile is public and will be visible to Prospects or any users of the Technology.
19.12 To market a Business, you may be required to create a Business Listing (“Listing”) that ludes: a detailed description (including photographs) of the Business; the type of occupancy offered at the Business; a video of the Business; hours of operation of the Business; amenities of the Business; social media tied to the business
19.13 To maintain your Listing, you must timely provide us with any other information relating to you or the Business as we may reasonably request.
19.14 We will review the Listing and we reserve the right to approve, decline, or reject an amendment the Listing. In the event that we decide to decline or require an amendment to the Listing, we will contact you via the email address provided when you created the Listing with our reasons for declining the Listing or with our suggested amendments to the Listing.
19.15 Once a Listing is approved it will be posted to the Technology and will be publicly available to all users of the Technology.
19.16 You are responsible for the accuracy of all information in your Listing.
19.17 In addition to marketing the Listing on the Technology, we will be entitled to display details of the Listing (and the Business) or market the Listing (and the Business) thru third party websites or send promotional emails to Prospects, or other third parties and provide such information about your Listing as we may deem appropriate to promote your Listing or to promote Virtual Food Hub. You grant us a limited license to use any and all information in your listing in the manner contemplated by these terms.
19.18 You can browse Listings and search for Business without creating an account. To inquire about a Listing, you must submit an inquiry or register with us and may be required to create an account on the Technology.
19.19 If you submit an inquiry about a Listing, a VFH will gain access to your information provided in your inquiry (including your email address, and telephone number) and will have the right to contact you. We do not provide a “form” agreement or other contractual terms for the agreement between the Business Listing owner and Prospects.
19.20 VFH is not liable to the prospect or the Business Listing Owner for any fees, costs, expenses, or losses occurred. Business Listing Owner may identify a business represented the actual business. In this case, the Business Listing Owner may claim the listing and provide documentation to VFH to obtain approval and access. In the case of information that is not accurate, please report such a listing to VFH
19.21 You agree to appoint us as your non-exclusive agent for the purpose of connecting you to prospective or Introduced Prospects.
19.22 For the purpose of this agreement, an ‘Introduced Business Client’ means any business who a) has expressed interest in your Business through the Technology; or b) has made an inquiry through the Technology or to us by email or telephone; or c) has become aware of you or the address or location of your Business (or any other Business owned by you that is not listed on the Technology) directly or indirectly as a result of your Listing with the Technology.
20. Registration Fees Processing
20.1 If YOU wish to process credit card payments in connection with the US, YOU must first establish YOUR own merchant bank account and an account with a provider of credit services on the Internet supported by US. WE cannot and do not guarantee that YOU will be able to qualify for and obtain a merchant account compatible with US.
20.2 YOU are responsible for:
a) testing the connectivity of YOUR merchant account (including authorization, settlement and refund) prior to processing credit card payments at YOUR event; and b) all fees and expenses generated in YOUR merchant bank account.
20.3 Any refunds or credits must be independently arranged between YOU and YOUR registrants or YOUR clients’ registrants. If YOU or YOUR client cancels a for which YOU have collected fees or if YOU permit partial or complete refunds, YOU must maintain sufficient funds in YOUR bank account so that the WE may issue such refunds to YOUR registrants. For security purposes, funds collected will not be held by US at any point in this process. All funds will pass from the registrant to YOU without ever being deposited in accounts controlled by WE.
21. Registration Fees Processing by WE
21.1 If specified on YOUR Order Form, WE shall process the collection of YOU’s registration fees received by the US “Registration / Surcharge Fees”) for the period or events specified.
21.2 WE shall retain a percentage of any Registration Fees as specified under the Order Form, which may lude bank and merchant account fees, internet gateway fees, handling and administrative expenses incurred by Us under.
21.3 We shall remit to YOU the remainder of Registration Fees (” YOU Repayment”), after deducting the Payment Processing Fee and any payment refunds, payment reversals and/or chargeback fees, as may be applicable. YOU Repayment shall be processed monthly, with amounts payable to YOU being remitted by check no later than the last business day of the month one (1) month following receipt of the Registration Fees by US. For example, for Registration Fees collected in March, We shall send payment of the corresponding YOU Repayment no later than the following April 30th, or last business day of April if earlier. The parties may agree to alternative arrangements for YOU Repayment under each Order Form. Except as otherwise set forth in the Order Form, all YOU Repayments will be remitted in the legal tender of one of the settlement currencies supported by US (currently, USD), less any applicable fees and reserves, originating from an applicable bank account. When the presentment currency (the currency used to pay the Registration Fees) is different than the settlement currency (the currency used to pay the YOU Repayment), WE will convert to the settlement currency at 1% above the daily mid-market foreign exchange rate. WE shall not be responsible for any fees charged by a YOU bank for accepting payment from WE.
22.4 YOU must ensure at all times while registration is open that a refund policy be clearly stated both on the website and within the registration form, clearly stating that no refunds shall be considered after sixty (60) days following payment, or fifteen (15) days following the completion of the in which registration fees were collected.
22.5 WE reserve the right at its sole discretion to withhold any outstanding fees payable to US for any Services provided under any Agreement between US and the YOU which are outstanding for any duration of time when YOUR Repayment is issued and apply such withholding to YOUR balance due to US. WE shall in good faith attempt to notify the YOU in advance of any such withholding.
23. Registrations, Reservations and Registrants
23.1 YOUR Order Form may specify the number of registrants allowed for a given service level and or price. YOU will be billed for any registrations beyond this number at the rate specified in YOUR Order Form, or the then-current rates for overage if none is specified. Except for the price, which may differ, YOU agree that registrations incurred beyond the contracted level will be subject to the same terms. For Order Forms specifying per-pricing, each activated Events, Items or Reservations will be counted for billing purposes except if YOU flagged in advance for administrative purposes by YOU outlined in the Order Form.
23.2 A Registrant is defined as a person registering via a registration or reservation process created within Our technology, even if the Registrant was submitted manually through the back end of the system. Guests registered under a Registrant will count as a Registrant for billing purposes. Each registration will count as a Registrant for billing purposes from the point of submission, not from the point of approval or confirmation. If a person cancels, the initial registration still counts as a Registrant for billing purposes.
23.3 YOU agree that the number of Registrants listed under minimum usage fee in YOUR Order Form is the minimum number of Registrants YOU agree to use and pay for per annum. Should YOU use less than this minimum number, fees due under the Order Form will not be reduced. Unused registrants will not roll over to another term year.
24. Registration / Reservation Price and Payment
24.1 YOU agree to pay all fees and other charges in accordance with this Agreement.
24.2 Payment shall be by credit card, unless otherwise specified on YOUR Order Form. We may impose a special handling charge of 3-5% if special invoicing requirements apply. Annual fees are charged per annum. As an example, if the Order Form Term spans three years, YOU will be charged the annual amount three times.
22.3 Except where prohibited by applicable law, if YOU pay any fees due hereunder via credit or debit card, then WE reserves the right to charge YOU an additional fee equal to the amount listed on your Order Form of the amount charged, and YOU hereby consent to such charge being made against the credit or debit card.
22.4 If YOU exceed the contracted level of Services during the term of this Agreement, YOU will be charged as specified in YOUR Order Form, or if not specified, using the then-current rates for the overage. Where no limits for usage of Services are explicitly given in YOUR Order Form, limits will apply as specified by product earlier in this document.
22.5 WE reserve the right to increase recurring fees payable hereunder at any time upon sixty (60) days prior written notice provided that such increase is no greater than the Annual Price Cap as defined in the applicable Order Form. Notwithstanding anything contained herein to the contrary, any Professional Services (as defined below) fees will not be subject to the Annual Price Cap.
22.6 If YOU requests Our Personnel to travel in conjunction with the Services, then all travel-related expenses, including but not limited to airfare, local transportation, hotel, and daily per diem for Our Personnel will be charged separately. Our charges will be invoiced after they are incurred and shall be payable by YOU in accordance herewith.
23. Sensitive Personal Information:
23.1 Notwithstanding any provision to the contrary in this Agreement, YOU acknowledge and agree that use of the Our Services to transmit, process or store Sensitive Personal Information (as defined below) is unnecessary for use of the Services and therefore YOU shall be solely responsible for any such use of the Services by YOU or YOUR employees, agents or subcontractors and WE shall bear no risk or liability for same.
23.2 “Sensitive Personal Information” shall be defined as:
a) social security numbers;
b) passport numbers or other government issued id numbers, date of birth and/or gender, except solely to the extent required by applicable regulations of the Department of Homeland Security or other government regulatory body;
c) health or medical information (other than food allergies or medical contact information);
d) financial account information (other than payment information entered securely using WE’s online payments module); and
e) other information which a reasonable person would recognize as being highly sensitive (but excluding, for the avoidance of doubt, contact information such as name, mailing address, email address, and phone number).