TERMS OF SERVICE FOR VISTASHARE ONLINE SERVICES

VistaShare, LLC ("VistaShare") provides its service to Customer ("Customer") subject to the following Terms of Service ("TOS") and VistaShare's Privacy Policy for its VistaShare online services, together with any provisions in Customer’s order form (the “Order Form”) and the provisions of any separate written and fully executed agreement (a “Separate Contract”) among Customer and VistaShare (this TOS, the Privacy Policy, the Order Form, and any Separate Contract, collectively, the “Agreement”). In addition, when using specific VistaShare online services, Customer and VistaShare will be subject to any guidelines or rules applicable to these services, which VistaShare may communicate to Customer or post at www.vistashare.com from time to time. These guidelines or rules shall be deemed part of the Agreement.

 

1. DESCRIPTION OF THE SERVICES

VistaShare currently provides users with online client and outcome tracking applications branded as Outcome Tracker (the "Services"). Unless explicitly stated otherwise, any new features that augment or enhance the current Services, including any new VistaShare online services, will be subject to the TOS.

VistaShare does not perform data-entry (that is, the input of Customer’s Data (defined below)) as part of the Services.  Customer shall be solely responsible to enter and update all Data tracked as part of the Services, and for the accuracy of Customer’s entries. Such responsibilities include, without limitation, creating and inputting the Data that Customer enter. Customer hereby acknowledges and agrees that VistaShare shall not be responsible for assisting Customer in creating or inputting Data.

 

2. WHAT CUSTOMER MUST DO TO USE THE SERVICES

The Services are Internet-based, and offered on a software-as-a-service basis.  In order to use the Services, Customer must obtain access to the Internet and pay any service fees associated with such access to Customer’s Internet service provider. Customer must also provide all computer or other equipment necessary to make such connection, at Customer’s own cost, and are also responsible for the maintenance of such equipment.

 

3. CUSTOMER REGISTRATION INFORMATION MUST BE ACCURATE, CURRENT AND COMPLETE

In consideration of Customer’s use of the Services, Customer agrees that Customer will, or will require each individual User (defined below) of the Services, to: (a) provide true, accurate, current and complete registration information about as prompted by the registration form of the Services (such information, the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If any Registration Data is untrue, inaccurate, not current or incomplete, or if VistaShare has reasonable grounds to believe that such Registration Data is untrue, inaccurate, not current or incomplete, and is not corrected within 5 business days of VistaShare’s notification to Customer about such circumstance, VistaShare has the right to suspend or terminate the access of that user.

 

4. CUSTOMER’S OBLIGATION TO PAY FEES

Customer agrees to pay all applicable subscription, service and use fees that VistaShare charges Customer for the Services. Customer agrees to pay all costs (including reasonable attorney's fees), if any, incurred by VistaShare in collecting overdue fees from Customer. Customer may choose to prepay subscription fees annually by check or authorize VistaShare to automatically transfer funds electronically each month from Customer’s bank account. In the event an authorized electronic funds transfer is rejected (due to insufficient funds, a closed account, or for any other reason), Customer agrees to reimburse VistaShare for any fees that its financial institution charges for such rejected transaction. Customer also agrees to pay all foreign, federal, state and local sales or use taxes (if any) applicable to Customer’s access, use or receipt of the Services.

 

5. TERM; TERMINATION

A.  VistaShare shall provide the Services, and the parties’ mutual rights and obligations shall be in effect, until Customer or VistaShare permissibly terminates the Agreement (the period between the date of the Order Form and the termination of the Agreement is the “Term”). The minimum period for which Customer is committing to subscribe to the Services (the “Initial Term”) is set out in Customer’s Order Form.

B.  If Customer terminates the Agreement for its convenience during the Initial Term, Customer shall be liable for any fees due through the balance of the Initial Term. Customer may terminate the Agreement for its convenience effective on any date after the end of the Initial Term upon sixty (60) days’ written notice to VistaShare.  Customer may also terminate the Agreement for VistaShare’s material breach thereof by written notice to VistaShare, provided that  Customer shall have provided VistaShare thirty (30) days’ notice of such default and an opportunity to cure such default.

C.  Unless provided otherwise in a Separate Contract, VistaShare may terminate the Agreement (and discontinue the provision of the Services to Customer) (a) for its convenience, upon sixty (60) days written notice to Customer; or (b) immediately upon written notice to Customer for Customer’s material breach of the Agreement. Provided, however, that before invoking its right to terminate under the preceding clause (b), in the case of (i) Customer’s first default as to a payment obligation in any twelve (12) month period, VistaShare shall have provided ten (10) days’ written notice of its intent to terminate, and an opportunity to cure such payment default; or (ii) in the case of other non-payment defaults that do not immediately jeopardize the security of the Services or place VistaShare in immediate jeopardy of violating applicable law, VistaShare shall have provided thirty (30) days’ notice of such default and an opportunity to cure such default.   No cure period shall apply to a second or subsequent default as to payment obligations within a single twelve (12) month period.

D.  Upon a termination under this Section 5, the provisions of Section 19 shall apply.

 

6. ACCESS, PASSWORDS AND SECURITY

Customer may designate administrative users (“Administrative Users”) and portal users (“Portal Users”) under Customer’s License (defined below) (collectively, such Administrative Users and Portal Users, the “Users”).  Administrative Users are persons, typically within or associated with Customer’s organization, who have access to the administrative and management functions of Outcome Tracker.  Portal Users are clients, stakeholders, or other participants, typically outside Customer’s organization, that may log into Outcome Tracker for limited non-administrative functions. Customer will be responsible for the confidentiality and use of the user name(s) and password(s) of Administrative Users. Customer will be responsible for all electronic communications, including User registration and other User information, e-mail, and other data ("Electronic Communications") entered through or under the user name(s) and password(s) of the Administrative Users. VistaShare will act as though any Electronic Communications it receives under the user name(s) of Administrative Users will have been sent by the Administrative User indicated. Customer agrees immediately to notify VistaShare if you become aware of any loss or theft or unauthorized use of any of the user name(s) and/or password(s) of any Administrative User.

 

7. ELECTRONIC COMMUNICATION BETWEEN CUSTOMER AND VISTASHARE

The Services allow Users to send Electronic Communications directly to VistaShare and interact within applicable areas of the Services. Electronic Communications include Customer’s organization's client data that Customer sends through the Services (the "Data"). Customer acknowledges and agrees to the following with respect to use of Electronic Communications through the Services:

A.  VistaShare shall be entitled, but is not obligated, to review or retain Electronic Communications for compliance with the TOS and the security of the Services. VistaShare may also review or retain Electronic Communications for other reasons that VistaShare believes in good faith will improve the quality of the Services;

B.  VistaShare may disclose Electronic Communications if required to by law or in the good-faith belief that such disclosure is reasonably necessary to: (i) comply with legal process; (ii) enforce the Agreement; (iii) respond to claims that any Electronic Communications violate the rights of third parties; or (iv) protect the rights, property, or personal safety of VistaShare, its users or others; provided, however, that before making a disclosure to comply with legal process, VistaShare will notify Customer and, in the event such a disclosure is requested pursuant to legal process, will provide Customer with a reasonable opportunity to resist such disclosure at Customer’s cost, and in Customer’s sole discretion, before making such disclosure;

C.  Customer agrees to provide VistaShare an e-mail address for each Administrative User, promptly to provide VistaShare with any changes to such e-mail addresses, and to accept Electronic Communications from VistaShare at the e-mail addresses specified;

D. Customer agrees that VistaShare may provide notices, statements and other communications of a non-legal nature to Customer solely through e-mail at the e-mail address associated with the system administrator or billing contact, as appropriate.

 

8. SECURITY OF DATA TRANSMISSION

To access the Services, Users must use software produced by third parties, including, but not limited to, "browser" software that supports a data security protocol compatible with the protocol used by VistaShare. Until notified otherwise by VistaShare, Customer and Customer’s Administrative Users must (a) use software that supports the Secure Socket Layer (SSL) protocol or other protocols accepted by VistaShare and (b) follow VistaShare's logon procedures for Services that support such protocols. Customer acknowledges that VistaShare is not responsible for notifying Customer of any upgrades, fixes or enhancements to any such third party software or for any compromise of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. Customer acknowledges that it is possible that Electronic Communications may be accessed by unauthorized third parties when communicated between Customer and VistaShare using the Internet, other network communications facilities, telephone or any other electronic means. Customer understands that the technical processing and transmission of the Services, including Customer’s Electronic Communications, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.

 

9. GENERAL PRACTICES REGARDING USE OF THE SERVICES

Customer acknowledges that VistaShare may establish reasonable general practices and limits concerning use of the Services. Customer further acknowledges that VistaShare reserves the right to alter or amend these general practices and limits at any time, upon notice as provided in Section 22 below.

VistaShare reserves the right to disable the Services in the event that all Administrative Users are inactive for six consecutive months, or to disable access for individual Administrative Users that are inactive for six consecutive months, in each instance after providing ten business days’ notice to Customer of its intention to do so.  This ability does not apply to individual suspension of Portal Users, which can be inactive indefinitely without being disabled.

Other than as described above, VistaShare may establish commercially reasonable terms and conditions, and general practices and limits, that apply to Portal Users, and may require such Portal Users to agree to such terms through a “click-through” or “check box” license procedure.

Customer agrees that the amount of personal information that Customer collects and inputs as part of Customer’s use of the Services shall be limited to the amount reasonably necessary to accomplish Customer’s legitimate business purposes, or to comply with applicable local, state, or federal regulations.

 

10. CUSTOMER OBLIGATIONS

A.  Customer will not, and will not permit any Administrative User or other person within Customer’s organization, to use any Service or Electronic Communication for any purpose that is unlawful, abusive, harassing, libelous, defamatory, obscene or threatening. or to solicit VistaShare customers or others for any purpose;

B.  Customer will not, and will not permit any Administrative User or other person within Customer’s organization, to upload, post, reproduce or distribute any Electronic Communication, information, software or other material when doing so would violate the intellectual property rights of any person;

C.  Customer will not, and will not permit any Administrative User or other person within Customer’s organization, to in any way express or imply that any opinions contained in Customer’s Electronic Communications are endorsed by VistaShare;

D.  The Customer shall be responsible for all materials used or displayed by the Customer through the Services, and all Customer’s acts or omissions that occur in connection with the Services or with aUser’s username or password.

E.  The Customer agrees that any and all press releases and other public announcements related to its participation in the Services and subsequent transactions between VistaShare and the Customer, including the method and timing of such announcements, must receive express prior written approval from VistaShare. VistaShare reserves the right to withhold approval of any public announcement in its sole discretion. Without limitation, any breach of the Customer's obligation regarding public announcements shall be a material breach of its agreement with VistaShare.

F.  Customer agrees that it will not engage in any activities, or input any materials into the Services:

1. 1. That constitute or encourage a violation of any applicable law or regulation;
   2. That impersonate or invade the privacy of any third party or entity;
   3. That infringe on the rights of any third party, including but not limited to the intellectual property, business, contractual, or fiduciary rights of others;
   4. That are in any way connected with the transmission of "junk mail," "spam" or the unsolicited mass distribution of e-mail, text messages, or other communication methods, or with any unethical marketing practices; or
   5. That are obscene, vulgar, offensive, dangerous, or otherwise inappropriate to the purpose for which the Services are being used.

 

11. SERVICES AND SUPPORT

A.  SUPPORT: The Customer can obtain assistance with any technical difficulty that may arise in connection with the Customer's utilization of the Services by requesting assistance by e-mail to support@VistaShare.com. VistaShare reserves the right to establish limitations on the extent of such support and the hours during which it is available.

B.  CONSULTATIONS: Telephone consultation may be purchased on an hourly basis.

C.  BACKUP SERVICES: VistaShare shall provide backup services during the Term using commercially reasonable procedures.

D.  UPDATES: VistaShare shall periodically release updates to the Services through software updates or otherwise. Updates shall be deemed accepted by Customer upon VistaShare providing access to such update.

E.  DOWNTIME: Customer acknowledges and agrees that the System may be inaccessible for a period of time for purposes of maintenance, installation, update implementation, replacements, backup, or modifications of the Services.

F.  ADDITIONAL SERVICES: Customer has the right to request additional professional services from VistaShare. Upon VistaShare’s acceptance of such request, VistaShare shall provide Customer with the specified professional services. All professional services performed shall be subject to the discretion of VistaShare and shall be deemed delivered by VistaShare and deemed accepted by Customer upon performance.

 

12. SECURITY AND STORAGE OF DATA

The security of Data may be maintained through the use of data encryption, data security protocols, passwords and other methods which VistaShare may employ, or which VistaShare may suggest or require that Customer employ.   Such encryption, protocols, passwords, and other methods have inherent weaknesses which may result in a breach of security notwithstanding their careful and non-negligent use.  Customer agrees that provided VistaShare has followed all such encryption, protocols, and methods that it has prescribed in its internal security policies, VistaShare has no responsibility or liability either for the deletion or failure to store any Data transmitted by Customer or anyone else to the Services or the operation, or failure, or weakness, of any data encryption, data security protocols, passwords or other security methods employed by VistaShare.

 

13. VISTASHARE'S PROPRIETARY RIGHTS

Customer acknowledges and agrees that the Services constitute proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on the Services, in whole or in part. Customer agrees not to reproduce, duplicate, copy, sell, resell, sublicense, or otherwise exploit any portion of the Services, use of the Services, or access to the Services.

Subject to all conditions contained in the Agreement and the full payment of fees due to VistaShare, VistaShare hereby grants Customer a non-transferable, non-exclusive and terminable right and license (the “License”) to use the Services; provided that Customer does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code, or sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Services. Customer agrees not to modify the Services in any manner or form, or to use modified versions of the Services, including (without limitation) for the purpose of obtaining unauthorized access to the Services. Customer agrees not to access the Services by any means other than through the interfaces that are provided by VistaShare for use in accessing the Services.

The License shall terminate at the end of the Term.

VistaShare’s proprietary rights do not extend to the Data, and all Data remains the property of Customer.  In connection with the Data, VistaShare acts as a data processor only.  By purchasing the Services, Customer grants VistaShare permission to process the Data to perform the functions contemplated through the Services, as modified from time to time, and in accordance with the terms of this TOS, the Privacy Policy, the Order Form, and any Separate Contract.

 

14. TRADEMARK INFORMATION

"VistaShare," the VistaShare logo, Outcome Tracker, and other VistaShare trademarks, service marks, logos and product and service names are marks of VistaShare (the "VistaShare Marks"). Customer agrees not to display or use either the VistaShare Marks in any manner without the owner's express prior written permission. Customer agrees not to contest or aid in contesting the ownership or validity of the trademarks, trade secrets, service marks or copyrights of VistaShare.

 

15. DISCLAIMER OF WARRANTIES

CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT:

A. CUSTOMER’S USE OF THE SERVICES ARE AT CUSTOMER’S SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. VISTASHARE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND (EXCEPT AS DESCRIBED IN PARAGRAPH 15(B) BELOW), WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

B.  EXCEPT AS SET FORTH BELOW, VISTASHARE MAKES NO WARRANTY THAT (i) THE SERVICES WILL MEET CUSTOMER REQUIREMENTS, (ii) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; NO SUCH WARRANTY IS IMPLIED BY ANY PROVISION OF THIS TOS, THE ORDER FORM, OR THE PRIVACY POLICY.  NOWWITHSTANDING THE FOREGOING, VISTASHARE SHALL KEEP THE SERVICES PERFORMING IN CONFORMITY WITH THEIR DOCUMENTATION IN ALL MATERIAL RESPECTS AND WILL CORRECT VERIFIABLE AND REPRODUCIBLE ERRORS RELATED TO THE SERVICES WHEN REPORTED TO VISTASHARE IN ACCORDANCE WITH VISTASHARE’S USUAL AND CUSTOMARY SUPPORT PROCEDURES, WHICH VISTASHARE MAY AMEND FROM TIME TO TIME.  AN ERROR CORRECTION, WHEN COMPLETED, MAY BE PROVIDED IN THE FORM OF A “TEMPORARY FIX,” CONSISTING OF SUFFICIENT PROGRAMMING OR INSTRUCTIONS TO IMPLEMENT THE ERROR CORRECTION.  FOR THE PURPOSES OF THIS PARAGRAPH, AN “ERROR” IS ANY FAILURE OF THE SERVICES TO CONFORM TO THEIR DOCUMENTATION IN ANY MATERIAL RESPECT.  AN “ERROR CORRECTION” IS EITHER A MODIFICATION OR ADDITION THAT, WHEN MADE OR ADDED TO THE SERVICES, BRINGS THE SERVICES INTO CONFORMITY WITH THEIR DOCUMENTATION IN ALL MATERIAL RESPECTS OR A PROCEDURE OR ROUTINE THAT, WHEN OBSERVED IN THE REGULAR OPERATION OF THE SERVICES, AVOIDS THE PRACTICAL ADVERSE EFFECT OF SUCH NONCONFORMITY.

C.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM VISTASHARE, OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.

D.  NO FINANCIAL, LEGAL, OR TAX ADVICE OR COUNSEL IS GIVEN, OR SHALL BE DEEMED TO HAVE BEEN GIVEN, BY THE SERVICES.

E.  THE SECURITY MECHANISM INCORPORATED IN THE SERVICES HAS INHERENT LIMITATIONS AND CUSTOMER MUST DETERMINE THAT THE SERVICES ADEQUATELY MEETS ITS REQUIREMENTS. THE CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDED VISTASHARE HAS FOLLOWED ALL ENCRYPTION, PROTOCOLS, AND METHODS THAT IT HAS PRESCRIBED IN ITS INTERNAL SECURITY POLICIES, ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT ITS OWN DISCRETION AND RISK AND THAT THE CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

F.  THE CUSTOMER AGREES NOT TO RESELL OR ASSIGN OR OTHERWISE TRANSFER ITS RIGHTS OR OBLIGATIONS UNDER THESE TOS WITHOUT THE EXPRESS PRIOR WRITTEN AUTHORIZATION OF VISTASHARE.

G.  NEITHER VISTASHARE NOR THE CUSTOMER SHALL BE LIABLE TO THE OTHER FOR ANY DELAY OR FAILURE IN PERFORMANCE UNDER THESE TOS RESULTING DIRECTLY OR INDIRECTLY FROM FORCE MAJEURE EVENTS INCLUDING, BUT NOT LIMITED TO: NATURAL DISASTER; TERRORISM; RIOT; SABOTAGE; LABOR DISPUTES; WAR; PANDEMIC; FAILURE OF THE INTERNET NETWORK; ANY ACTS OR OMISSIONS OF ANY GOVERNMENT OR GOVERNMENTAL AUTHORITY; DECLARATIONS OF GOVERNMENTS; OR TRANSPORTATION DELAYS.

H.  THE PROFESSIONAL SERVICES TO BE PROVIDED BY VISTASHARE, INCLUDING BUT NOT LIMITED TO TRAINING, CONSULTING, AND DATA CONVERSION SERVICES HEREUNDER, IF ANY, SHALL BE PERFORMED ON A BEST EFFORTS BASIS AND SHALL CONFORM TO THE STANDARDS GENERALLY OBSERVED IN THE INDUSTRY FOR SIMILAR SERVICES.

1. 16. LIMITATION OF LIABILITY

IN NO EVENT WILL VISTASHARE BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE ITEMS) EVEN IF VISTASHARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR WHETHER SUCH DAMAGES OR LOSSES ARE REASONABLY FORESEEABLE. CUSTOMER AGREES THAT THE LIABILITY OF VISTASHARE ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE, IN ANY WAY CONNECTED WITH THE SERVICES OR THE AGREEMENT, WILL NOT EXCEED THE SUBSCRIPTION FEE AMOUNT CUSTOMER PAID TO VISTASHARE DURING THE TWELVE (12) MONTHS IMMEDIATLY PRECEEDING THE DATE SUCH CLAIMED DAMAGE OR INJURY OCCURRED. VistaShare shall not be liable for any loss resulting from a cause over which VistaShare does not have direct control, including but not limited to failure of electronic or mechanical equipment or communication lines; telephone or other interconnect problems; bugs, errors, configuration problems or incompatibility of computer hardware or software; failure or unavailability of Internet access; problems with Internet service providers or other equipment or services relating to Customer’s computer; problems with intermediate computer or communications networks or facilities; problems with data transmission facilities or Customer’s telephone or telephone service; unauthorized access, theft, operator errors, severe weather, earthquakes or labor disputes; failure of Customer to cooperate with the reasonable requests of VistaShare that are consistent with this TOS and related to the Services; breach of the Agreement by Customer; misuse of the Service by Customer or third parties; or any other events reasonably beyond the control of VistaShare. VistaShare is not responsible for any damage to Customer’s computer, software, modem, telephone or other property resulting from Customer’s use of the Services. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

 

17. CUSTOMER’S INDEMNITY OBLIGATION REGARDING THIRD PARTY CLAIMS

A.  Customer (as the “Indemnifying Party”) shall defend, indemnify and hold VistaShare and its employees, officers and agents (collectively, the “Indemnified Parties”) harmless from any third party judgments, damages, liabilities, amounts paid in settlement, awards, fines, penalties, disbursements, costs and expenses (including witness fees, expert fees, investigation fees, travel expenses, bonds, the cost of establishing the right to indemnification under this Section 17, costs of investigation, court costs and reasonable attorney’s fees), to which the Indemnified Party may be subjected, become liable to pay, suffer or incur in any threatened or actual claim, allegation, suit, subpoena, action or proceeding (whether completed, actual, pending, threatened, civil, criminal, investigative, administrative, meritorious or without merit) (collectively, “Liabilities”) to the extent such Liabilities arise from (i) the breach of any obligation, warranty, or representation in this TOS; or (ii) from the negligent act or omission of an Indemnifying Party or its suppliers or subcontractors.

B.  Where the facts or the law relating to any threatened or actual claim would preclude the Indemnified Party from being completely indemnified by the Indemnifying Party, the Indemnified Party will be partially indemnified by the Indemnifying Party to the fullest extent permitted by the law.

C.  The Indemnified Party agrees to (i) give the Indemnifying Party prompt written notice of such suit or claim, (ii) grant the Indemnifying Party sole control of the defense or settlement of such suit or claim (provided, however, that the Indemnifying Party shall not agree to any settlement that requires the Indemnified Party to pay damages, admit liability, suffer any other adverse consequence, or resolves a claim without a full release of liability in favor of the Indemnified Party without the Indemnified Party’s prior written consent) and (iii) reasonably cooperate with the Indemnifying Party, at the Indemnifying Party’s expense, in its defense or settlement of the suit or claim. The Indemnified Party shall not settle any such claim, action, suit or proceeding without the prior consent of the Indemnifying Party.  Notwithstanding the foregoing, the Indemnified Party shall have the option, at its own expense, to participate in the defense thereof with counsel of its own choosing.

D.  The indemnification obligations of this paragraph 17 apply only to a third party’s assertion of a Liability against VistaShare, and not to disputes between Customer and VistaShare.

 

18. SURVIVAL OF CERTAIN PROVISIONS

The sections of this TOS with the following headings shall survive the termination of the Agreement: SECURITY AND STORAGE OF DATA, VISTASHARE’S PROPRIETARY RIGHTS, TRADEMARK INFORMATION, DISCLAIMER OF WARRANTIES, LIMITATION OF LIABILITY, CUSTOMER’S INDEMNITY OBLIGATION REGARDING THIRD PARTY CLAIMS, SURVIVAL OF CERTAIN PROVISIONS, EFFECT OF TERMINATION, LINKS, NOTICES, GENERAL PROVISIONS.  Termination of the Agreement shall not affect any payment obligation that Customer has to VistaShare on the date of such termination.  Portions of a Separate Contract may also survive the termination of the Agreement in accordance with the provisions of the Separate Contract.

 

19. EFFECT OF TERMINATION

Upon any termination (whether for convenience, or on account of a party’s breach), Customer agrees that VistaShare, in its sole discretion, may terminate Customer’s use of the Services, remove and discard any Electronic Communications within the Services, and immediately deactivate or delete all Users’ usernames and passwords and all related information and files in the Services and/or bar any further access to such files or Services.  Notwithstanding the foregoing, upon a termination VistaShare will use commercially reasonable efforts to return Data to Customer electronically, in an appropriate format selected by VistaShare, as promptly as is reasonably possible after such termination, provided Customer has complied with the Agreement and has paid in full all amounts owed to VistaShare, and provided that Customer notifies VistaShare in writing of its desire to receive such Data no later than the final day of the Term or, in instances where VistaShare terminates the Agreement on account of a second or subsequent payment default, no later than ten (10) days following the end of the Term. Further, Customer agrees that VistaShare shall not be liable to Customer or any third party for any permissible termination of access to the Services; provided, however, that if VistaShare terminates the Agreement for its convenience, or if Customer terminates the Agreement for convenience after the Initial Term, VistaShare will refund the pro rata portion of any fee that may have been paid by Customer for the portion of the Services not furnished to Customer as of the date of such termination.

 

20. SOURCE CODE ESCROW

A.  VistaShare has provided access to a current copy of the source code for the software constituting the Services (the “Source Code”) to BotkinRose, PLC, counsel to VistaShare as provided under the terms and conditions of that certain Source Code Escrow Agreement (the “Escrow Agreement”) between VistaShare and BotkinRose, PLC (the “Escrow Agent”). VistaShare represents and warrants that the Escrow Agent will have access to a copy of the current Source Code and related materials.  The Escrow Agreement contains commercially reasonable terms and conditions, and the materials escrowed are sufficient to enable Customer to continue to support the existing functionality of the Services contemplated herein.  VistaShare will add Customer’s name in a Registration Statement (defined in the Escrow Agreement) to make Customer a registrant under the Escrow Agreement.   Each registrant under the Escrow Agreement is a third-party beneficiary to the Escrow Agreement so that in the event VistaShare or another party is materially and substantially failing to support the Services, the Source Code and related escrowed materials will be made available to Customer.

B.  In the event Customer receives access to the Source Code from the Escrow Agent, it shall treat the Source Code as strictly confidential, and shall not disclose it to any third party; provided, however, that Customer may disclose the Source Code to a third party contractor retained for the purpose of ensuring the continued operation of the Services following the discontinuation of VistaShare’s support for the Services, after such third party contract executes and delivers a confidentiality agreement.

C.  Once the Source Code is delivered to Customer under the terms of the Source Code Escrow Agreement, Customer shall have a limited, royalty-free, non-exclusive, non-transferable license to utilize the Source Code to provide for the continuation of Services under this TOS during the period in which VistaShare is not supporting the Services. Customer may not modify the Source Code or the Services in any way under such license.

D.  If VistaShare resumes support of the Services at any time after the Escrow Agent delivers the Source Code to Customer, then the license described in the preceding subparagraph shall cease. Customer shall return all copies of the Source Code and any other escrowed materials that it received to the Escrow Agent or to VistaShare.

E.  At all times during the period in which VistaShare is not supporting the Services, Customer shall act in a commercially reasonable manner and shall mitigate its damages to the full extent reasonable under the circumstances.

F.  VistaShare shall be responsible for all fees to be paid to the Escrow Agent under the Source Code Escrow Agreement.

 

21. LINKS

The Services may provide, or third parties may provide, links to other Internet sites or resources. Because VistaShare has no control over such sites and resources, Customer acknowledges and agrees that VistaShare is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. Customer further acknowledges and agrees that VistaShare shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.

 

22. NOTICES

Notices to Customer from VistaShare may be made by either e-mail or regular mail. VistaShare may provide notices regarding legal matters (including, without limitation, notice of changes to the TOS or Privacy Policy, modification or termination of the Services or the Agreement, and notices of breach of the Agreement) by e-mail to Customer at the notice address contained in the Order Form.  If no such address appears on the Order Form, VistaShare may provide such notices to e-mail address of the system administrator.  VistaShare may also provide such notices by physical mail to the physical address that appears for Customer on VistaShare’s records. Customer may update any such e-mail or physical addresses by notice in writing to VistaShare from time to time.

 

23. MODIFICATIONS

VistaShare may modify the TOS upon notice to Customer in accordance with paragraph 22. If VistaShare sends Customer notice of a modification, Customer confirms its acceptance of the modification by continuing to use the Services.

 

24. GENERAL PROVISIONS

The Agreement constitutes the entire agreement between Customer and VistaShare and govern Customer’s use of the Services, superseding any prior agreements between Customer and VistaShare with respect to the subject matter contained in the Agreement. The TOS may only be modified or amended as set forth above in Section 23 or otherwise in a writing (including a Separate Contract) signed by VistaShare and Customer. In the event that Customer has a Separate Contract with VistaShare, the terms of the Separate Contract shall control over the terms of the TOS, Privacy Policy, and Order Form to the extent inconsistent; the remaining terms of the TOS, Privacy Policy, and Order Form shall remain binding on the parties.  The Agreement and the relationship between Customer and VistaShare shall be governed by the laws of the Commonwealth of Virginia without regard to its conflict of law provisions. Any action among Customer and VistaShare related to the Services, including without limitation any action for the breach of the Agreement or for the construction thereof, or for the collection of any amounts due to VistaShare for the provision of Services, may be brought only in the state or federal courts sitting in Harrisonburg, Virginia; Customer consents to the personal jurisdiction of such courts and waives any objection to venue therein.  If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement shall remain in full force and effect. Customer agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or the Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred. The Section titles in the Agreement are for convenience only and have no legal or contractual effect.