1420 Washington Blvd #301 Detroit, MI  48226

info@vizbe.co

© 2017

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PROFESSIONAL SERVICES AGREEMENT

 

VIZBE PROFESSIONAL SERVICES AGREEMENT (“Agreement") is made effective as of the date of any VizBe Services Authorization Form by and between VizBe, LLC (“VizBe”) with corporate offices located at 1420 Washington Blvd., Suite 301, Detroit, MI 48226 ("VizBe") and the Customer identified within the VizBe Services Authorization Form ("Customer") as signed by Customer. VizBe and Customer may each be referred to as a “Party” and collectively as the “Parties”.

 

In consideration of the mutual promises set forth below, the parties agree as follows:

1. Purpose Of Agreement

1.1. VizBe agrees to provide Customer with software configuration, implementation consulting, training, project management, and support services (“Professional Services”) as defined within the VizBe Services Authorization Form and signed by Customer. Customer agrees to contract for requested Professional Services according to the provisions of this agreement and as authorized by Customer.

2. VizBe Duties

2.1. The VizBe Services Authorization Form signed by Customer sets forth the scope of Professional Services to be provided to Customer in accordance with this Agreement. Customer agrees that these duties represent the expected scope of work to be performed by VizBe.

 

3. Anticipated Project Schedule

3.1. The schedule for providing the Professional Services will be defined in the VizBe Services Authorization Form signed by Customer. Any change in the scope and/or the schedule of Professional Services to be provided by VizBe must be agreed to in writing by the parties.

 

4. Acceptance Of Customer Responsibilities

4.1. By authorizing this Agreement, Customer understands and agrees that Customer shall be responsible for performing the obligations set forth in Exhibit A in a commercially reasonable manner.

 

5. Terms Of Payment

5.1. Customer agrees to pay VizBe for the Professional Services as specified in the VizBe Services Authorization Form as agreed to in writing by Customer. Customer understands that VizBe has provided an estimate for the scope of work to be performed. Customer also understands that if the time and costs required on the part of VizBe to deliver the scope of work are expected to exceed the amount for the Professional Services set forth in the VizBe Services Authorization Form, VizBe shall provide a detailed written estimate of any additional time and costs required, which shall be approved, in Customer’s reasonable discretion.

5.2. Customer understands that VizBe has the right upon written notice to Customer to immediately and temporarily halt the duties to be performed if Customer: a) becomes more than 45 days delinquent on any open project billings, or b) has an outstanding balance at any given time of more than 20% of the project scope outlined in the VizBe Services Authorization Form. VizBe agrees to resume the duties upon the Customer rectifying any open balance per the conditions of a) or b) and Customer understands that any delay in the project due to this occurrence will also reflect a respective change in the project schedule.

 

6. Change In Project Scope

 

6.1. In the event that Customer requests a change to the scope of Professional Services set forth in the VizBe Services Authorization Form, VizBe shall submit to Customer a detailed plan setting forth the estimated time and cost for each such requested change. All changes to the scope of work shall become effective only when agreed to in writing by VizBe and Customer on the standard VizBe Project Change Request Form. If accepted by Customer, VizBe will perform the work based on the revised scope as documented in the Project Change Request Form. The performance of changes by VizBe shall be governed by the terms and conditions of this Agreement.  VizBe will have the option to include such changes to the scope of work into the existing project via a Project Change Request Form or to choose to complete such changes in scope as a secondary project delivered separately after successful delivery of the current project.

 

7. Additional Implementation Duties

 

7.1. In the event that Customer desires additional Professional Services beyond those set forth in the VizBe Services Authorization Form, such additional Professional Services will be provided by VizBe either through a formal Project Change Request Form as set forth above in Section 6 or on a piecemeal basis as agreed to in writing by Customer within the guidelines specified in the VizBe Policies and Billing Procedures.

 

8. Indemnity And Damage Exclusion

 

8.1. Customer acknowledges that Customer was responsible for the procurement of hardware, software, networking infrastructure, and other computing environment components (“System Components”) upon which VizBe will provide its Professional Services. Customer further acknowledges that changes in the services provided by VizBe may be necessary as a result of changes or version updates to the System Components that could not be reasonably anticipated by VizBe at the time that VizBe’s services were undertaken, including problems with the System Components procured by Customer independent of the services provided hereunder. In the event that changes in the scope of VizBe’s services are required as a result of changes in the System Components that could not be reasonably anticipated at the time services covered by this Agreement were undertaken, VizBe shall so advise Customer and the scope of the services will be modified in accordance with Section 7 hereof. VizBe shall not be responsible for any damages caused to Customer as a result of Customer's failure to follow VizBe’s recommendations with respect to changes to the scope of VizBe’s Professional Services as contemplated herein. In addition, Customer agrees that VizBe shall not be liable for any costs or damages resulting from problems with the hardware and software procured by Customer which are unrelated to the services performed by VizBe.

 

9. Acceptance Of Policies And Procedures

 

9.1. VizBe has established policies and procedures relating to business transactions with VizBe. Except as agreed upon in a VizBe Services Authorization Form, by authorizing this Agreement, Customer agrees to the terms and conditions specified in the standard VizBe Policies and Billing Procedures stated in Exhibit B which may be revised from time to time by mutual agreement of the parties in writing.

 

10. Confidentiality

 

10.1. “Confidential Information” means the terms and conditions of this Agreement, the existence of the discussions between the parties, including but not limited to, information regarding each party’s business plans, product designs, samples, costs, prices, finances, marketing plans, business opportunities, personnel, research and development activities, know-how, technology, methodology; provided that information disclosed by the disclosing party in written or other tangible form will be considered Confidential Information by the receiving party only if such information is conspicuously designated as “Confidential,” “Proprietary” or a similar legend or which, under the circumstances surrounding disclosure ought to be treated as Confidential Information. Information disclosed orally shall only be considered Confidential Information if: (i) identified as confidential, proprietary or the like at the time of disclosure, and (ii) confirmed in writing within thirty (30) days of disclosure. Confidential Information disclosed to the receiving party by any affiliate or agent of the disclosing party is subject to this Agreement. The parties acknowledge and agree that all disclosures by one or more of the parties hereto prior to the execution of this Agreement shall constitute Confidential Information for purposes of this Agreement . Items will not be considered Confidential Information if: (a) available to public other than by a breach of an agreement by the recipient; (b) rightfully received from a third party not in breach of any obligation of any confidentiality; (c) independently developed by the recipient without access to the Confidential Information as verified by its written records; or (d) rightly known to the recipient at the time of disclosure as verified by its written records.

 

10.2. Each party agrees that it shall not use for any purpose or disclose to any third party any Confidential Information without the express written consent of the disclosing party. Each party agrees to safeguard the Confidential Information against use or disclosure, other than as authorized by or pursuant to this Agreement, through measures, and exercising a degree of care, which are at least as protective as those the disclosing party exercises in safeguarding the confidentiality of its own proprietary information, but no less than a reasonable degree of care under the circumstances. Each party shall permit access to the Confidential Information of the disclosing party only to those individuals (a) who have entered into a written nondisclosure agreement with Customer on terms equally as restrictive as those set forth herein, and (b) who require access in the performance of their duties in connection with the receiving party’s rights under this Agreement. 

 

11. Agreement Termination Terms

 

11.1. Customer or VizBe may terminate this Agreement in whole or in part on thirty (30) days prior written notice without liability to the other party, except for work previously completed hereunder. VizBe shall complete any work assigned or scheduled during the notice period in accordance with the terms and conditions of this Agreement. VizBe will thereupon render a statement to Customer for all services performed to date of termination of this Agreement, at the hourly rate herein above specified, plus any expenses incurred, less any payments made by Customer. Customer agrees to pay any balance due within fifteen (15) days of being billed for same.

 

12. Hiring

 

12.1. Customer agrees to refrain from soliciting for employment VizBe’s employees, without the prior written consent of VizBe, during the term of this Agreement, and for a period of one (1) year following the termination of this Agreement. A penalty of 100% of the employee’s first year’s salary will be immediately payable by the Customer to VizBe should the Customer be in breach of this paragraph.

 

13. Limitation Of Liability

 

13.1. In no event shall either party be liable to the other for loss of profit, indirect, special, consequential or other similar damages arising out of any breach of this Agreement or any obligations under this Agreement. Neither party shall be liable to the other for any damages caused by delay in delivery of the services identified in this Agreement.

 

14. General Provisions

 

14.1. This Agreement shall be construed in accordance with, the laws of the State of Michigan. If any provision or this Agreement or the application thereof to any entity, individual or partnership, or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by the law. The Parties agree that the right to trial is a constitutional right, but that same may be waived. The Parties, having the opportunity to consult with counsel hereby waive any right to trial by jury resulting from or relating to this Agreement and/or the Form.

 

14.2. Neither party shall assign this license or any rights or obligations hereunder without the prior written consent of the non-assigning party, and any attempted assignment in violation hereof will be void. Notwithstanding the foregoing, consent is not required for an assignment to a successor-in-interest via a merger, acquisition, or corporate restructuring.

 

14.3. Neither party is liable for failing to fulfill its obligations due to natural disaster, epidemic disease, terrorism, civil or military authority, war, riots, strikes, fire, or other causes beyond its reasonable control. A party affected by such an event shall notify the other party as soon as reasonably possible of the delay, the reason for the delay, and its estimated time to fulfill its obligations.

 

14.4. The parties agree that the provisions of this Agreement are severable and should any of the provisions be deemed invalid, then only that provision shall fail and the remainder of this Agreement shall remain in full force and effect. This Agreement and the performance thereunder shall be construed and regulated in accordance with the laws of the State of Michigan.

 

14.5. This Agreement and all attached exhibits represent the entire understanding and agreement between the Parties for the Services, and merges all prior discussions between them and supersedes and replaces any and every other agreement or understanding which may have existed between the parties, with respect to the subject matter hereof.

 

14.6. The Agreement may be executed in several counterparts, and each executed counterpart shall be construed an original instrument, but such counterparts shall together constitute but one and the same instrument.

 

14.7. All provisions of this Agreement relating to proprietary rights, confidentiality, publicity, disclaimer of warranty and limitation of liability will survive the expiration or sooner termination of this Agreement.

 

14.8. VizBe and its personnel or agents, in performance of this Agreement, are acting as independent contractors and not as an employees or agents of Customer. Under no circumstance will either Party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty to or make any representation on behalf of the other.

EXHIBIT A

 

ACCEPTANCE OF CUSTOMER RESPONSIBILITIES

 

Availability of Information

 

1. Customer agrees to make all staff members available to the VizBe Project Team within reasonable notice for information gathering or meetings

2. Customer agrees to provide ready access to all necessary internal and external information sources which could potentially affect the success of the duties identified in Exhibit A.

 

Meeting Cancellations

 

1. Customer agrees to provide VizBe with at least 24 hours written notice of cancellation of any scheduled telephone meeting

2. VizBe agrees to provide Customer with equivalent notice of meeting rescheduling and project schedule changes

3. For any on-site meetings / sessions requiring VizBe’s staff travel to Customer locations, Customer agrees to provide VizBe with at least 5 business days written notice of cancellation of any scheduled meeting

 

References

 

1. Customer agrees to become a reference for VizBe upon the successful completion of the project scope identified in Exhibit A including these reference protocol elements:

• Reference letter on Customer letterhead

• Assistance with VizBe’s publication of a case study / success story

• Customer power user and technical user contact available for VizBe prospect reference telephone calls and site visits VizBe Professional Services Agreement

 

EXHIBIT B

 

POLICIES AND BILLING PROCEDURES

 

Billing Policies

• A 25% deposit is required to begin projects of more than one man-day in estimated duration

• VizBe maintains monthly billing periods. Customer will be billed on the last day of the month for man-days worked by VizBe during the completed billing period

• All billings for services are due Net 15 unless otherwise indicated in payment terms

• A 1.5% per month finance charge is assessed on invoices open more than 30 days

• Monthly statements will be generated documenting current period activities, related travel expenses, and finance charges

• A 5% pre-payment incentive is available for full payment for all services identified in the VizBe Services Authorization Form upon signature Professional Services Standard Rates

HOSTED SERVICES TERMS AND CONDITIONS

 

VIZBE HOSTED SERVICES TERMS AND CONDITIONS (“Agreement") are made effective as of the date of any VizBe Services Authorization Form by and between VizBe, LLC (“VizBe”) with corporate offices located at 1420 Washington Blvd., Suite 301, Detroit, MI 48226 ("VizBe") and the Customer identified within the VizBe Services Authorization Form ("Customer") as signed by Customer. VizBe and Customer may each be referred to as a “Party” and collectively as the “Parties”.

 

In consideration of the mutual promises set forth below, the parties agree as follows:

 

1. Scope Of This Agreement:

 

1.1. VizBe offers Customers a variety of hosted services (“Services”). This Agreement will apply to any services ordered by Customer on a VizBe Services Authorization Form (“Services Form”). Unless otherwise specified in a Services Form, the services rendered will conform to VizBe’s then-current description of such named service (“Service Description”). In the event of a conflict, the Services Form will take precedence over this Agreement. Each individual Services Form is an independent contract, incorporating this Agreement. Specific terms applicable to the services ordered on one Services Form do not apply to services ordered on a different Services Form.

 

2. Terms Applicable To All VizBe Hosted Services:

2.1. VizBe’s Service Descriptions will not change during a given calendar year, except as may be required due to a change in tax regulations or laws. VizBe may change its Service Descriptions at its sole discretion and will provide Customer with advance notification of any material changes to said Service Descriptions that may impact Customer’s ongoing use of Services.

2.2. VizBe will provide the functionality and services identified in the relevant Service Description or as stated in the Services Form authorized by Customer.

2.3. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer supplied information, (ii) establish user connectivity to the Services using the Internet, including opening applicable ports, (iii) configure remote printing for its users, (iv) maintain all user accounts and desired access credentials to the Services, (v) ensure that all Customer users comply with the terms and conditions of this Agreement and, (vi) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify VizBe promptly of any such unauthorized use.

2.4. Customer shall use the services solely for its internal business purposes as specified in this Agreement and shall not: (i) license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the services available to any third party, other than as specified in this Agreement; (ii) interfere with or disrupt the integrity or performance of the services or the data contained therein; (iii) attempt to gain unauthorized access to the services or its related system or networks.

2.5. VizBe will maintain all Customer Information for at least three (3) years (the current input year and two prior years). The current and two prior years’ data will remain available on-line for immediate access. Should Customer require access to data from a year other than the current plus two prior years, the files, if available, will be made available to Customer at an additional charge within a reasonable time frame, and will be provided as data files rather than available through the Services.

2.6. Customer agrees that its purchase of Services is not contingent upon the delivery of any future functionality or features nor is it dependant on any oral or written public comments made by VizBe with respect to future functionality or features.

2.7. VizBe and Customer acknowledge that successful implementation and use of the Services depends upon the Customer’s provision of appropriate hardware, software, Internet connectivity, and networking as recommended by VizBe, or such other hardware or software as VizBe may reasonably recommend from time to time (collectively, the “Operating Environment”). Customer shall be responsible for providing the Operating Environment at its own expense.

 

3. Terms Applicable To VizBe Hosted Application Services:

 

3.1 VizBe has developed certain proprietary computer software program(s), as more fully described in the Services Form (collectively, as the same may be supplemented, modified, updated or enhanced from time to time, the “Applications”), which are hosted on servers and made available to VizBe’s Customers by means of the Internet (collectively, the “Application Service”). Customer desires to access and use the Application Service and VizBe desires to provide the Application Service to Customer, subject to all of the terms and conditions in this Agreement and Services Form authorized by Customer.

3.2. VizBe grants to Customer a limited non-exclusive, non-assignable and non-transferable right during the term specified in the Services Form to access and uses the Application Service only by the authorized users and on Customer’s authorized network workstations specified in the Services Form, in accordance with all of the terms and conditions set forth in this Agreement and the Services Form authorized by Customer. The Applications will be made available to Customer in executable object code form only.

3.3. VizBe may, in its sole discretion and without notice, deny any person or company’s access to the Applications or any portion of the Applications. As a condition of Customer’s use of the Application Service, Customer will not use the Application Service for any purpose that is unlawful or prohibited by the Terms in this section 3. Customer may not use the Application Service in any manner that could damage, disable, overburden or impair any VizBe server or interfere with any other party’s use or enjoyment of the Applications. Customer may not attempt to gain unauthorized access to other’s accounts, information, computer systems or networks connected to the VizBe server or to any of the services or products offered via the Application Service, through hacking, password mining or any other means. Customer may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Application Service.

3.4. The Applications, any portion of the Applications, and any software, products or services obtained herein may not be decompiled, disassembled, reverse engineered, uploaded, reproduced, modified, distributed, transmitted, duplicated, copied, sold, resold, displayed, performed, published, licensed, used to create derivative works from, transferred or otherwise exploited for any commercial purpose that is not expressly granted by VizBe. VizBe reserves the right to refuse service, terminate account(s) and/or cancel orders in its discretion, including, without limitation, if VizBe believes that conduct violates applicable law, is harmful to the interests of VizBe or its affiliates for any other reason. VizBe further reserves the right to pursue any legal action available against any user whose use violates the state, federal or local law or Terms in this section 3.

3.5. VizBe warrants that the Application Service will substantially conform in all material respects to the current documentation provided by VizBe in connection with the Application Service, including, without limitation, any updates thereof (the “Documentation”) when used in accordance with the Documentation and all of the terms and conditions hereof. In the event that the Application Service fails to perform in accordance with this warranty, Customer shall promptly inform VizBe of such fact, and, as Customer’s sole and exclusive remedy VizBe shall either: (i) repair or replace the Application Service to correct any defects in performance without any additional charge to Customer, or (ii) in the event that such repair or replacement cannot be done within a reasonable time, terminate this Agreement and provide Customer, as Customer’s sole remedy, with a refund of the Fees paid to VizBe within the six (6) months prior to the date the failure of the Application Service was first reported to VizBe in writing.

4. Services Levels:

 

4.1 VizBe shall use commercially reasonable efforts to cause the Services to be accessible to Customer, as specified herein, at least 99.0% of each month, excluding routine maintenance, reasonable downtime of VizBe computers from interruption, termination, failed operation of the Internet, private intranet, third party telecommunication services, government computer unavailability, and force majeure events. If VizBe is not in compliance with this obligation for more than 24 hours in any 30-day period during the term of the Services Form, Customer may request a credit of up to 1/30 of the equivalent monthly fee for each day VizBe is not in compliance. Credits are Customer’s sole and exclusive remedy for failure to maintain the projected Services availability standards.

4.2. VizBe is not responsible for any additional loss and/or damage to Customer as a result of no Services availability.

 

4.3. While VizBe attempts to keep regular backups of data stored on its systems, VizBe does not guarantee the existence, accuracy or regularity of its backup services and VizBe does not guarantee that its backup procedures will prevent the loss of, alteration of or improper access to Customer’s information.

 

5. Fees and Payments:

 

5.1. Customer shall pay all fees identified in executed Services Forms for the initial term noted on the Services Form. For renewal terms, Customer shall pay the fees as invoiced for such renewal terms.

5.2 Payment shall be made within thirty (30) days from the date of the invoice. Monthly fees are invoiced a month in advance. In the event payment is not made when due, Customer shall pay interest on the unpaid amount equal to one percent (1%) per month or the highest interest rate permitted by law, whichever is less. Interest shall not accrue on portions of invoices that are disputed in good faith if the dispute is detailed in writing, delivered by the payment due date, and undisputed portions of the invoice are paid on time.

5.3 Customer shall be responsible for any sales taxes which may be applicable to the Services provided under this Agreement, and shall, if applicable, provide proof of tax exempt status.

5.4 If Customer’s account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, VizBe reserves the right to suspend the Services provided to the Customer until such amounts are paid in full.

 

6. Term and Termination:

 

6.1. This Agreement commences upon mutual execution and will end when terminated as set forth in this Section 6. This Agreement may be terminated in the event of a default, as identified in section 6.3 below, or at any time that there are no authorized Services in force under this Agreement, as authorized by Customer on a Services Form.

6.2. The initial term of this Agreement is for one (1) calendar year (“Initial Term”), commencing on the date of the first Services Form execution. If Customer terminates any Services prior to the end of its term for any reason other than VizBe’s uncured default, VizBe is entitled to the entire fee for the terminated Service term.

6.3. An event of default is: (i) a failure by either party to comply with any material obligation under this Agreement; and (ii) such non-compliance remains uncured for more than thirty (30) days after receipt of written notice thereof.

6.4. If an event of default occurs, the non-defaulting party, in addition to any other rights available to it under law or equity, may terminate the breached Contract under this Agreement and any licenses granted thereunder by giving written notice to the defaulting party. Except as otherwise specifically stated herein, remedies shall be cumulative and there shall be no obligation to exercise a particular remedy.

6.5. Upon termination, Customer loses the right to utilize the Services. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to VizBe prior to the effective date of termination. In the event of any termination, the provisions of the Agreement and Service Forms shall survive as necessary to effectuate their purposes and shall bind the parties and their legal representative, successors, and assigns.

6.6. Upon request by Customer made within 30 days of the effective date of termination, VizBe will make available to Customer its Customer Information. If Customer has not paid all invoiced fees, VizBe reserves the right to hold the Customer Information until such time that all such fees have been paid. After such 30-day period, VizBe shall have no obligation to maintain or provide any Customer Information and shall thereafter, unless legally prohibited, delete all Customer Information in its systems or otherwise in its possession or under its control.

7. Intellectual Property, Proprietary Rights, and License:

 

7.1. VizBe is the exclusive owner of and hold and will retain all right, title and interest in and to VizBe proprietary materials, and Customer will have no ownership or use rights therein except as set forth in this Agreement.

7.2. Customer is the exclusive owner of and holds and will retain all right, title and interest in and to the Customer confidential information and Customer proprietary content and VizBe will have no ownership or use rights therein except as set forth in this Agreement. 7.3. VizBe grants to Customer a non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement) non-sub licensable right to access and use the Service and to store, reproduce, display, perform, transmit and use the VizBe proprietary materials in accordance with the terms of this Agreement. VizBe reserves any rights not expressly granted hereunder.

7.4. Customer hereby grants to VizBe a nonexclusive, worldwide and royalty-free right and license to store, reproduce, display, perform, transmit and use the Customer information and Customer proprietary content solely for the purposes of this Agreement. Customer reserves any rights not expressly granted hereunder.

7.5. Customer will not use or permit any use or access to the Services in an effort to develop or modify competitive services.

7.6. VizBe will maintain appropriate physical, electronic and procedural safeguards to store, dispose of (if applicable) and secure Customer confidential information to protect it from unauthorized access, use, disclosure, alteration, loss and destruction.

7.7. VizBe shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancements requests, feedback, recommendations or other information provided by Customer or its Users relating to the operation of the Services.

 

8. Intellectual Property Indemnification, Warranty, and Limitation of Liability:

 

8.1. VizBe will defend, at its expense, any action brought against Customer to the extent that it is based on a claim that the use of the Service, within the scope of this Agreement, infringes upon any patent, trade secret, or copyright. In addition, VizBe will indemnify Customer from any costs, damages, and fees which are attributable to such claim and finally awarded or settled against Customer in such action, provided that Customer notifies VizBe in writing promptly after receipt of the claim; permits VizBe to defend, compromise, or settle the claim (provided that VizBe may not settle or defend any claim unless it unconditionally releases Customer of all liability); and Customer will provide all available information, assistance, and authority to enable VizBe to do so. Customer will have no authority to settle any claim on behalf of VizBe. Should the Service become, or in VizBe's opinion be likely to become, the subject of a claim of infringement of a patent, trade secret, or copyright, VizBe may (i) procure for Customer, at no cost to Customer, the right to continue to use the Service, or (ii) replace or modify the Service, at no cost to Customer, to negate such infringement, provided that the same function is performed by the replacement or modified Service. If VizBe is unable to reasonably secure those remedies, VizBe will refund any prepaid fees for infringing Service, prorating the refund based upon the remaining time in the current, prepaid period. The foregoing is Customer’s sole and exclusive remedy for infringement of any patent, trade secret or copyright by the Service.

8.2. Customer is responsible for verifying that the Service meets any applicable requirements. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT AND THE APPLICABLE SERVICES FORM, VIZBE MAKES NO IMPLIED WARRANTIES OR REPRESENTATIONS, CONCERNING THE SERVICES RENDERED HEREUNDER, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VIZBE DOES NOT WARRANTY THAT SERVICE WILL OPERATE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFICIENCIES, ERRORS, DEFECTS OR NONCONFORMITIES WILL BE CORRECTED. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES UNDER THIS AGREEMENT.

8.3. Except for VizBe's obligations to indemnify as set forth in this Section 7, in no event will VizBe's liability for any cause of action arising out of or related to this Agreement exceed the money paid by Customer, and/or prepaid by Customer for the Services, pursuant to this Agreement for the calendar year during which the cause of action arose. Further, in no event will VizBe be liable for lost profits, loss of use, cost of procurement of substitute goods or services, special damages, indirect damages, penalties, or consequential damages, even if advised of the possibility of such damages.

 

9. Confidentiality:

 

9.1. Each party hereto shall hold all non-public information received from the other party as confidential and shall not disclose such information to third parties unless (i) such information becomes generally available to the public other than as a result of disclosure by the party wishing to disclose such information; (ii) such information was known to the party wishing to disclose such information or available to such party on a non-confidential basis, prior to its disclosure by the other party; (iii) such disclosure is reasonably necessary to such party’s performance under this Agreement; or (iv) such disclosure is required by law. In the case of disclosures required by law, when such notice is not prohibited by law, the party holding the confidential information shall give the owner of the confidential information prompt notice of the disclosure requirement and an opportunity to defend against or limit such disclosure. Each of the Parties acknowledges that any use or disclosure of Confidential Information in violation of this Agreement may cause irreparable injury to the disclosing party for which other remedies at law would be inadequate, and each of the Parties agrees that a disclosing party will have the right to seek injunctive or other equitable relief as may be of the Confidential Information in violation of this Agreement, and may also exercise such other rights and remedies as such disclosing party may have at law or in equity. To the extent that they are applicable, each party shall also comply with federal and state requirements concerning the preservation of such information.

9.2. In the event that there is a breach of VizBe’s confidentiality resulting in the disclosure of personally identifiable data, VizBe will comply with all statutory requirements concerning the provision of notice of such breach to the impacted persons and to credit agencies.

 

10. General:

 

10.1. This Agreement shall be construed in accordance with, the laws of the State of Michigan. If any provision or this Agreement or the application thereof to any entity, individual or partnership, or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by the law. The Parties agree that the right to trial is a constitutional right, but that same may be waived. The Parties, having the opportunity to consult with counsel hereby waive any right to trial by jury resulting from or relating to this Agreement and/or the Form. 10.2. Neither party shall assign this license or any rights or obligations hereunder without the prior written consent of the non-assigning party, and any attempted assignment in violation hereof will be void. Notwithstanding the foregoing, consent is not required for an assignment to a successor-in-interest via a merger, acquisition, or corporate restructuring.

10.3. Neither party is liable for failing to fulfill its obligations due to natural disaster, epidemic disease, terrorism, civil or military authority, war, riots, strikes, fire, or other causes beyond its reasonable control. A party affected by such an event shall notify the other party as soon as reasonably possible of the delay, the reason for the delay, and its estimated time to fulfill its obligations.

10.4. The parties agree that the provisions of this Agreement are severable and should any of the provisions be deemed invalid, then only that provision shall fail and the remainder of this Agreement shall remain in full force and effect. This Agreement and the performance thereunder shall be construed and regulated in accordance with the laws of the State of Michigan.

10.5. This Agreement, the Services Forms, and all attached exhibits represent the entire understanding and agreement between the Parties for the Services, and merges all prior discussions between them and supersedes and replaces any and every other agreement or understanding which may have existed between the parties, with respect to the subject matter hereof.

10.6. The Services Forms and Agreement may be executed in several counterparts, and each executed counterpart shall be construed an original instrument, but such counterparts shall together constitute but one and the same instrument.

10.7. All provisions of this Agreement relating to proprietary rights, confidentiality, publicity, disclaimer of warranty and limitation of liability will survive the expiration or sooner termination of this Agreement. 10.8. VizBe and its personnel or agents, in performance of this Agreement, are acting as independent contractors and not as an employees or agents of Customer. Under no circumstance will either Party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty to or make any representation on behalf of the other.