Subscription Services Agreement

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.

BY USING THE SERVICE AND/OR CLICKING “AGREE”, YOU ARE AGREEING TO BE BOUND BY THIS SUBSCRIPTION SERVICES AGREEMENT (Agreement). IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.

This Agreement is between View the Space, Inc., a Delaware corporation (VTS), and you and/or your employer (collectively Client, You and/or Your) as set forth on the applicable services order form.

1. Description of Services
   VTS may grant to Client access to any of the services (each, a Service) set forth in the applicable order form (Order).

2. License Grant
   1. Limited License.Subject to Client’s compliance with the terms and conditions of this Agreement, including, but not limited to, Client’s obligation to pay fees when due, VTS grants to Client a non-exclusive, non-transferable license to access and use the Service selected by Client on the applicable Order during the subscription term of the applicable Order for Client’s internal business purposes.
   2. Client Responsibilities.Client may permit, as applicable, its employees, contractors, and/or brokers to access and use the Services licensed by Client for the benefit of Client (Users).  Use of the Services by Users shall be subject to any additional restrictions and/ or fees as set forth in the Order or other limits within the Service.  Subject to the foregoing, with respect to permitted Users, Client may determine the level of access to the Client Data and Content it grants to each such User and shall be responsible and liable for all actions of its Users under this Agreement. Client (i) must keep its and all User passwords secure and confidential; (ii) must use commercially reasonable efforts to prevent unauthorised access to its and its User’s account and notify VTS promptly of any such unauthorised access; and (iii) may use the Service only in accordance with VTS’s online User Knowledge Base (located at https://help.vts.com) and applicable law.
3. Payment
   Client must pay all fees as specified on the Order, but if not specified then upon receipt of an invoice.  Client will be invoiced annually in advance, unless otherwise specific on the Order.  Client is responsible for the payment of all applicable sales, use, withholding, VAT and other similar taxes, without deduction or offset to the fees due. This Agreement contemplates one or more Orders for the Service, which Orders are governed by the terms of this Agreement.  In no event will the amount due under an Order fall below the Total Commitment set forth on the applicable Order.  The per unit pricing during any 12-month period may increase by up to 10% above the applicable pricing for the same Service(s) during the immediately preceding 12-month period unless Client is otherwise notified at least 45 days in advance.  Client shall be responsible for the cost of VTS’s travel and reasonable expenses associated with any onsite trainings and/or implementation services in addition to the fees set forth in the applicable Order.
4. Proprietary Rights
   1. Data and Content Ownership. All data and content uploaded or transmitted by Client through the Service into its account or created or generated by Client within its account in the Service (excluding (i) videos created by VTS and uploaded to Client’s account, and (ii) data and content accessed by Client which belongs to VTS or another user) remains the property of Client, as between VTS and Client (Client Data and Content).  If Client is given permission by another customer of VTS to access such other customer’s account within the Service, as between Client and VTS, the other customer shall remain the owner and data controller of the data uploaded or manipulated within such other customer’s account. VTS will implement appropriate technical and organisational measures for protection of the security, confidentiality and integrity of Client Data and Content, including any Client Personal Data (as defined herein). Client grants VTS the right to use the Client Data and Content for purposes of performing under this Agreement and in accordance with the permissions granted by Client through the functionality in the Service. VTS shall not be responsible for modifications, manipulations, updates or deletions to the Client Data and Content made by Users nor responsible for confirming the accuracy of any Client Data and Content. During the term of this Agreement, Client may export its Client Data and Content as allowed by the functionality within the Service.
   2. Reporting Software.Any reporting software provided by VTS as part of the Service and specified in an Order (Software) is licensed to Client as follows: VTS grants Client a non-exclusive, non-transferable license, during the term of the Order, to internally operate and copy such Software, solely in connection with self-service reporting in Excel related to the Service.
   3. VTS Reservation of Rights.The software, workflow processes, API, user interfaces, databases, designs, documentation, and any videos created by VTS and other technologies provided by VTS as part of the Service are the proprietary property of VTS and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with VTS, along with any know-how, inventions, methods or techniques related to the Services developed or conceived as a result of VTS providing or Client using the Services, including without limitation any derivative works, improvements or enhancements and/or extensions of the foregoing (collectively, the Developments) and Client hereby assigns to VTS any rights it might otherwise acquire in such Developments as a result of its use of the Services. Client may not remove or modify any proprietary marking or restrictive legends in the Service. VTS reserves all rights unless expressly granted in this Agreement.
   4. Restrictions.Client may not and shall ensure that each User does not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorised access to the Service or its related systems or networks; (v) save as may be permitted by law, reverse engineer the Service; or (vi) access the Service to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
5. Warranty
   1. Warranty.VTS warrants to Client: (i) that commercially reasonable efforts will be made to maintain the online availability of the Service for a minimum of availability in any given month of 99.5% (excluding scheduled maintenance, force majeure and outages that result from any Client or third party technology issues); (ii) the functionality or features of the Service may change but will not materially decrease during any paid term; and (iii) that the support may change but will not materially degrade during any paid term.
   2. ACCESS RIGHTS DISCLAIMER. CLIENT UNDERSTANDS THAT IT SOLELY DECIDES WHICH USERS WILL HAVE ACCESS TO ITS ACCOUNT WITHIN THE SERVICE AND THE APPLICABLE PRIVILEGES AND ACCESS RIGHTS OF USERS (FOR EXAMPLE, VIEW, DATA EXPORT, DATA ENTRY, ETC.). VTS HAS NO CONTROL OVER SUCH DECISIONS OR THE OUTCOME OF SUCH DECISIONS.
   3. GENERAL DISCLAIMER. VTS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE AND FITNESS FOR PURPOSE OR A PARTICULAR PURPOSE. WHILE VTS TAKES REASONABLE PHYSICAL, TECHNICAL AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, VTS DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. VTS DOES NOT WARRANT THAT CLIENT'S USE OF THE SERVICE AND SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.
6. Mutual Confidentiality
   1. Definition of Confidential Information.“Confidential Information” means all non-public information disclosed by a party (Discloser) to the other party (Recipient), 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. VTS’s Confidential Information includes, without limitation, the Service (including, without limitation, the Service user interface design and layout and pricing information) and all non-public VTS techniques, technology and processes. Client’s Confidential Information shall include its Client Data and Content.
   2. Protection of Confidential Information.The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care).  The Recipient must not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.
   3. Exclusions.Notwithstanding Section (a), Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; (iv) was independently developed by the Recipient without use or access to the Confidential Information; or (v)  is aggregated, anonymized and non-attributable data, which when created by VTS, will be owned by VTS and without limiting the foregoing, VTS may use, reproduce and distribute Client’s aggregated, anonymized and non-attributable Client data in connection with VTS’s business.  The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
   4. Return/Destruction of Confidential Information. Upon expiration or termination of the Agreement, the Recipient will upon request of the Discloser, return to the Discloser, or destroy all copies of the Discloser’s Confidential Information, except for archival and back-up copies on back-up tapes maintained to comply with applicable laws.
7. Term and Termination
   1. Term.This Agreement continues until all Orders have terminated.
   2. Termination.Either party may terminate this Agreement and/or any Order(s) if the other party (i) is in material breach of this Agreement and has not cured such breach within thirty (30) days of the date of notification by the non-breaching party; or (ii) becomes the subject of insolvency, receivership or bankruptcy proceedings (or such analogous proceedings applicable to a party under local laws) or any other proceedings for the settlement of either party’s debts, or makes an assignment for the benefit of such party’s creditors.
   3. Return of Client Data and Content.Within 60-days after termination, upon request, VTS will provide a flat file data export of Client Data and Content. After such 60-day period, VTS has no obligation to maintain the Client Data and Content and may destroy it.
   4. Return VTS Property Upon Termination.Upon termination of this Agreement for any reason, Client must pay VTS for any unpaid amounts and destroy or return all property of VTS, including, without limitation, the VTS Confidential Information. Upon VTS’s request, Client will confirm in writing its compliance with this destruction or return requirement.
   5. Suspension of the Service.VTS may temporarily suspend the Service or remove the applicable Client Data and Content, or both, if it in good faith believes that (i) as part of using the Service, Client has violated a law or a restriction in Section 6(b) above, or (ii) any amount owed under an Order is more than 30 days past due. VTS will attempt to contact Client in advance.
8. Liability Limit
   1. Consequential Damages Waiver. EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA, RECORDS OR INFORMATION, AND LOST PROFITS, REVENUE OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
   2. Limitation of Liability. VTS’ TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) WILL NOT EXCEED THE AMOUNT PAID BY CLIENT WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
   3. Exclusions. Notwithstanding the foregoing, nothing in Section 8 shall limit or exclude either party’s liability for any liability that cannot be limited or excluded by applicable law.
9. Indemnity
   1. Defense of Third Party Claims.VTS will defend or settle any third party claim against Client to the extent that such claim alleges that VTS technology used to provide the Service violates any US copyright, patent, trademark or other intellectual property right of a third party, provided that Client (i) promptly notifies VTS of the claim in writing, (ii) cooperates with VTS in the defense; and (iii) allows VTS to solely control the defense or settlement of the claim. Costs.VTS will pay reasonable and justifiable infringement claim defense costs incurred as part of its obligations above, VTS-negotiated settlement amounts and finally adjudicated court awarded damages. Process. If such a claim appears likely, then VTS may modify the Service, procure the necessary rights or replace it with a substantially functional equivalent. If VTS determines that none of these options are reasonably available, then VTS may terminate the Service and refund a pro-rata portion of any fees prepaid by Client for Services not yet rendered. Exclusions. VTS has no obligation for any claim arising from (i) VTS’s compliance with Client’s specifications; (ii) a combination of the Service with other technology, services, software or hardware where the infringement would not have occurred but for the combination; (iii) use of Client Data and Content; or (iv) technology not provided by VTS. This section contains Client’s exclusive remedies and VTS’s sole liability for intellectual property infringement claims.
   2. By Client.If a third party brings a claim against VTS alleging that any part of the Client Data and Content infringes or violates that party’s patent, copyright, trade secret, contract right or other right or otherwise arising out of VTS’ use of the Client Data and Content under the terms of this Agreement,  Client will defend VTS against all such claims at Client’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by VTS, provided that VTS promptly notifies Client in writing of the claim and cooperates with Client in the defense and any related settlement and Client shall allow VTS to participate in the defense of any such action.
10. Data Protection
    Definition: For the purposes of this Section 10: "Applicable Privacy Laws" means all applicable privacy and data protection laws and regulations anywhere in the world; and the terms "data controller", "data processor", "process" and "processing" shall have the meaning given to them in Applicable Privacy Laws.For the purposes of this Section 10, "Personal Data" shall have the same meaning given to it under the Data Protection Act 1998 (and, if such legislation is superseded or replaced, such successor or replacement legislation).VTS obligations: To the extent VTS processes any Personal Data under the Agreement as a data processor for and on behalf of Client; VTS shall only process such Personal Data in accordance with Client's lawful instructions, except where otherwise required by Applicable Privacy Laws. For these purposes, Client instructs VTS to process such Personal Data for the purposes of performing the Agreement and VTS Services. Client acknowledges that VTS will not be liable for any loss suffered by Client to the extent that such loss results from following Client's instructions, which instructions shall include Client’s use of the Service.Security for Personal Data: To the extent VTS processes any Personal Data under the Agreement as a data processor for and on behalf of Client then it shall ensure it maintains appropriate security for such data in accordance with Section 4(a) (above).Data Transfers from EEA (including UK): VTS shall not process Client Personal Data relating to Client's who reside in the European Economic Area (including the United Kingdom) (EEA) in a country not recognized by the European Commission as having an adequate level of protection for Personal Data unless it has taken all such measures as are necessary to ensure an adequate level of protection for such Personal Data in accordance with the requirements of Applicable Privacy Laws. Such measures include reliance on VTS's EU-US Privacy Shield certification in the case of transfers of data.For the avoidance of doubt VTS is not a data processor acting on behalf of the Client in respect of certain business contact data being data which identifies Client and/or its Users.  VTS may use such business contact data as a data controller and for its own purposes in accordance with the terms of its Privacy Policy located at vts.com/privacy.
11. Governing Law and Forum
    This Agreement is governed by the laws of the State of New York (without regard to conflicts of law principles) for any dispute between the parties arising out of or relating to the subject matter of this Agreement. Any dispute between the parties arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the rules of the London Court of International Arbitration, which are deemed to be incorporated by reference into this Section 11. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be in London.  The language to be used in the arbitral proceedings shall be English.  Throughout this arbitration, the governing law of the contract shall be in the substantive law of the State of New York. Each party hereby expressly waives the application of New York General Obligation Law Section 5-903 to any renewal of this Agreement.

12. Other Terms
    1. Entire Agreement and Changes.This Agreement and the Order(s) constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Client is not relying on any representation concerning this subject matter, oral or written, not included in this Agreement. No representation, promise or inducement not included in this Agreement is binding.  Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Subject to Section 8, each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.VTS may update or revise this Subscription Service Agreement from time to time in its sole discretion without notice to Client, and VTS recommends that Client review this Agreement on a regular basis to stay abreast of the most current version. The most current version will be posted on the VTS site. Client’s continued use of the Services after any update or revision to this Agreement constitutes Client’s acceptance of the updates or revisions. No waiver of this Agreement is effective against VTS unless VTS signs the waiver in writing. Client shall appoint an account owner who shall have the authority to add subscriptions to Client’s account by written request (including email), online/in-app request and other means which may be introduced by VTS.  Client shall be bound by all actions of its account owner.  Client may change the account owner upon written notice to VTS.
    2. b. No Assignment.Neither party may assign or transfer this Agreement (including by operation of law) or an Order to a third party, except that this Agreement with all Orders may be assigned by VTS, without the consent of Client, as part of a merger, reorganization, change in control, or sale of substantially all the assets, of VTS.
    3. c. Independent Contractors.The parties are independent contractors with respect to each other and nothing in this Agreement shall be deemed to establish any partnership, joint venture, employment, franchise or agency relationship. Further, neither party will have the power to bind the other without the other's prior written consent nor make any representation that it has any such power.
    4. d. Enforceability and Force Majeure.If any term of this Agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
    5. e. Money Damages Insufficient.Any breach by a party of this Agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
    6. f. No Additional Terms.VTS rejects additional or conflicting terms of any Client form-purchasing document.
    7. g. Order of Precedence.If there is an inconsistency between this Agreement and an Order, the Order prevails.
    8. h. Survival of Terms.Any terms that by their nature survive termination of this Agreement for a party to assert its rights and receive the protections of this Agreement will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
    9. i. Severability. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
    10. j. Feedback.By submitting ideas, suggestions or feedback to VTS regarding the Service, Client agrees that such items submitted do not contain confidential or proprietary information, and Client hereby grants VTS an irrevocable, unlimited, royalty-free and fully-paid perpetual license to use such items for any business purpose.
    11. k. Reference Account.Client allow VTS to use its name and logo in its marketing communications and materials, in accordance with Client’s trademark guidelines and policies.
    12. l. Anti-Bribery. No payments or undue financial or other advantage of any kind shall be made by Client to advisers or agents, directly or indirectly, to any entity, government, corporation or other person for the purpose of improperly influencing the consideration of applications for a business activity or the receipt of any other benefits, including the obtaining or retaining of business.  Each party shall:

1. 1. 1. (a) comply with all Applicable Laws relating to anti-bribery and/or anti-corruption;
      2. (b) not engage in any activity, practice or conduct which constitutes an offence under any applicable anti-bribery and/or anti-corruption legislation; and
      3. (c) notify the other party immediately if it becomes aware that, or has reason to believe that, it has breached his obligations under this paragraph.
   2. m. Counterparts; Electronic Signature.  This Agreement may be executed in two or more counterparts, each of which shall be considered an original and all of which together shall constitute a one and the same agreement.  The parties agree that this Agreement may be electronically signed.  The parties agree that the electronic signatures appearing on this Agreement are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.
   3. n. No Third-Party Beneficiaries. Except as otherwise expressly provided for in this Agreement, nothing in this Agreement, express or implied, is intended or shall be construed to create any rights in, or confer any benefits upon, any person or entity other than the parties to this Agreement. No person who is not a party to this Agreement shall have any right to enforce any term of this Agreement.

Please Note: You are entering into a legally binding agreement.

Last updated on 21 July 2017.