These Verse Terms and Conditions ("Agreement") are a legal agreement between you ("Customer" or "you") and BONZA INTERACTIVE GROUP, LLC ("Verse," "we" or "us").
Some or all of the Plans may be subject to eligibility requirements or other restrictions or requirements. For example, one or more of the Plans may be offered only for individuals and/or small business. Customer shall be bound by and comply with any such restrictions and requirements set forth in the Plan Terms. Verse will have the right to terminate Customer’s access to any Plan immediately without prior notice if in Verse’s reasonable determination it appears that Customer has violated any such restrictions and requirements.
Subject to Section 3.3, Verse grants to Customer a nonexclusive, nontransferable license, during the Term, to allow Customer’s Authorized Users to access and use the Verse Platform on Customer’s behalf solely for Customer’s internal purposes in accordance with the terms and conditions of this Agreement, the applicable Plan Terms and the User Materials.
Verse reserves the right to (a) change the Verse Platform (including the content, appearance, design, functionality and all other aspects thereof), access procedures, tools, documentation, format requirements, communications protocols and services offered at any time for any reason, (b) completely discontinue the Verse Platform subject to providing Customer a pro rata refund for pre-paid amounts for services not consumed due to such complete discontinuation, which will be Verse’s entire obligation to Customer in the event of such complete discontinuation and (c) refuse the Verse Platform to anyone for any reason at any time.
Verse will provide Customer with the Standard Training Services, the cost of which is included in the License Fee.
Verse will use commercially reasonable efforts to provide support services to Customer via e-mail. Verse does not guarantee that the support will be available at a certain time or that Verse will respond within a certain time or that Verse will make the Verse Platform work on Customer’s system or resolve all problems in connection therewith.
Verse may provide, if requested by Customer, certain additional creative, consulting or training services for a(n) additional fee(s). Such additional services are subject to separate agreement by the parties and/or additional terms and conditions.
Customer shall pay to Verse the License Fee and applicable additional fees and charges (the “Fees”) within 30 days of the date of invoice. If Customer fails to pay any charges when due, Verse may charge and Customer shall pay interest of the lesser of 1.5%, or the maximum rate permitted by law, per month on any outstanding balance. In addition to any other rights and remedies of Verse pursuant to this Agreement, if any payment is past due, Verse may, in its sole discretion, without prior notice, suspend Customer’s access to the Verse Platform and any other services pursuant to this Agreement.
The Fees do not include taxes. Customer shall pay all sales taxes, use taxes, value-added taxes and other taxes and governmental assessments that may be due in connection with this Agreement (other than taxes based on Verse’s income). If Customer is exempt from sales tax, Customer shall timely provide to Verse a valid exemption certificate.
Verse will have the right in its sole discretion to change the License Fees at any time by posting such changes to https://verse.com/plans/ or elsewhere on Verse’s website. Any such change to the License Fees will take effect on the first day of Customer’s next billing cycle. By way of example and for the avoidance of doubt, if a Customer signs up for a Plan on April 3, 2016 and the License Fees are increased on July 5, 2016: (a) a Customer who had signed up for an annually billed Plan would not be charged the increased fee until the term commencing on April 3, 2017 and (b) a Customer who signed up for a month-to-month Plan would not be charged the increased License Fee until the term commencing August 3, 2016.
Customer shall supply to Verse all information reasonably requested by Verse in order to establish an Account. Customer shall keep Verse advised promptly of any changes to such information.
Customer shall ensure that its Authorized Users do not disclose a User ID to any person who is not an Authorized User. Customer shall adopt and maintain security precautions to prevent the disclosure to and use of a User ID by unauthorized persons and will promptly notify Verse if the security or integrity of a User ID has been compromised. Customer is entirely responsible for the security and confidentiality of Customer’s User ID.
Customer shall ensure that each Authorized User complies with each term of this Agreement that applies to any Authorized User or to Customer. Each act or omission by any Authorized User will, for purposes of this Agreement, be deemed to be an act or omission of Customer. Customer and each Authorized User are entirely responsible for any and all activities that occur under Customer’s User ID. Customer shall immediately notify Verse of any breach of security of which Customer becomes aware. Customer acknowledges that only Authorized Users are permitted to use the Verse Platform. Customer shall ensure that upon termination of an Authorized User’s employment by Customer, such person is no longer authorized or able to access the Verse Platform.
Customer shall (a) cooperate and consult with Verse in the set-up and activation of the Verse Platform for Customer if required and (b) provide and maintain, in good and working order at all times, its own Internet access and all necessary hardware, telecommunications equipment and services, Internet access, software and other materials and services necessary for Authorized Users to access and use the Verse Platform. Customer is responsible for the security of its own computer systems and the security of its and its Authorized Users’ access to and connection with the Verse Platform.
Customer shall timely pay for and obtain all authorizations, consents, releases and permissions that are necessary or desirable with respect to the Content or the use thereof in connection with the Verse Platform. Customer and its Authorized Users shall not submit or use Content or use the Verse Platform in any way that infringes, misappropriates or violates any trademark, copyright, patent, trade secret, right of publicity, right of privacy or other personal, legal, proprietary or contractual right of any third party or violates any Law.
Customer shall comply with all applicable Laws in connection with its use of the Verse Platform. Customer shall comply with the export Laws of the United States and other applicable jurisdictions in using the Verse Platform and obtain any permits, licenses and authorizations required for such compliance. Without limiting the foregoing, (a) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (b) Customer shall not authorize its employees or contractors to access or use the Verse Platform in violation of any U.S. export embargo, prohibition or restriction and (c) Customer shall comply with all Laws regarding the transmission of technical data exported from the United States and the country in which its employees or contractors are located.
The term of this Agreement will be as described in this Section 7.1 (“Term”). This Agreement will commence on the date of your acceptance of this Agreement, as described in Section 1 (the “Effective Date”).
Verse (or its licensors) is and will remain the exclusive owner of (a) the Verse Platform (including all of the software comprising any portion thereof and all related services, specifications, documentation and all technical information, and all Updates), (b) the User Materials, (c) Verse’s Confidential Information, (d) all techniques, know-how, software, algorithms and methods or rights thereto that are owned by Verse at the time this Agreement is executed, developed during the course of the design, development or provision of the Verse Platform or employed by Verse in connection with the Verse Platform and (e) all other Verse work product and/or other materials provided or accessible to Customer in connection with this Agreement, and all right, title and interest in and to all of the foregoing, including all intellectual property rights. Verse reserves all rights not expressly granted to Customer in this Agreement.
As between Verse and Customer, the Content shall be and remain the property of Customer. Customer grants to Verse a worldwide, non-exclusive, royalty-free, license to use, distribute, reproduce, publicly perform, publicly display, make, have made, store, maintain and import all Content for the purposes of providing and operating the Verse Platform and performing Verse’s obligations pursuant to this Agreement. The license may also be exercised on behalf of Verse by third parties acting on Verse’s behalf (e.g., technology partners, service providers and independent contractors).
Customer hereby grants to Verse a royalty-free, fully paid-up, irrevocable, worldwide, perpetual license to use, disclose and exploit any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Verse Platform or any other products or services, without restriction, including to improve the Verse Platform and to develop, market, offer, sell and provide other products and services.
The Verse Platform, User Materials and any nonpublic information or materials (tangible or intangible) provided or accessible to Customer pursuant to this Agreement (collectively, “Confidential Information”) contain trade secrets and proprietary and confidential information of Verse. Customer shall take all steps necessary to protect the confidentiality of the Confidential Information, and shall not disclose, provide or otherwise make available any Confidential Information to any third party without Verse’s prior written consent. Without limitation of the foregoing, Customer shall maintain at least the same precautions as it takes in regard to its own confidential information, but not less than reasonable care. Customer shall ensure that its Authorized Users having access to the Verse Platform or Confidential Information are aware of and bound by nondisclosure and use restrictions at least as protective of the Verse Platform and Confidential Information as those set forth in this Agreement. Customer shall promptly report to Verse in writing any unauthorized use or disclosure of any Confidential Information.
Verse reserves the right to change the Verse Platform (including the content, appearance, design, functionality and all other aspects thereof and the Plan Terms and License Fees), access procedures, tools, documentation, format requirements, communications protocols and services offered at any time for any reason.
Verse will use commercially reasonable efforts to make the Verse Platform available to Customer 24 hours a day, seven days per week, 365 days per year, except for certain scheduled service and maintenance or in the event of emergency or events of force majeure. Notwithstanding the foregoing, Verse will not be responsible for any downtime or failure to meet such Verse Platform availability goals. Verse will make good faith efforts to perform service and maintenance to the Verse Platform outside peak usage hours. Customer acknowledges that availability of the Verse Platform may be affected by (a) telecommunication network activity or capacity, (b) hardware failures and/or (c) compatibility with third party communication equipment, Internet access software and/or browsers. Verse disclaims any and all responsibility for, and will not have any liability with respect to, any unavailability or lack of functionality of the Verse Platform. Customer is responsible for providing all equipment and telecommunication services necessary to access the Verse Platform.
Verse reserves the right to conduct routine maintenance of the Verse Platform (“Scheduled Maintenance”). Verse will use commercially reasonable efforts to perform Scheduled Maintenance outside of regular business hours. Verse will not be responsible for any damages or costs incurred by Customer, if any, due to unavailability of the Verse Platform due to Scheduled Maintenance.
Verse is not obligated to monitor or review the Content, but has the right in its sole discretion to remove or block any Content at any time where (a) such Content violates any Law or is in violation of Verse’s applicable policies and procedures, including without limitation any acceptable use policies, (b) removal or blocking is necessary because of exigent circumstances or to protect the safety, security, reputation, or integrity of the Verse Platform, Verse, or any third party or (c) in order to respond to law enforcement or any other governmental authority.
Verse disclaims any and all responsibility for, and will not have any liability with respect to, any loss of any Content or any of the results of use of the Verse Platform. Verse is not responsible for the backup of any Content, data or results. Customer is responsible for adopting reasonable measures to back up the Content and related data and results and for adopting procedures to replace lost or damaged media and to reconstruct data. In the event of termination or expiration of this Agreement or disconnection of the Verse Platform, Verse may delete or store, in its discretion, any files, programs, data or messages associated with Customer’s account.
VERSE MAKES NO WARRANTIES RELATED TO THE VERSE PLATFORM OR ANY SERVICE PROVIDED BY VERSE PURSUANT TO THIS AGREEMENT, AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. VERSE DOES NOT WARRANT THAT THE OPERATION OF THE VERSE PLATFORM OR ANY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. VERSE ALSO MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF ANY SERVICES.
IN NO EVENT WILL VERSE BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES PURSUANT TO THIS AGREEMENT OR IN CONNECTION WITH THE VERSE PLATFORM OR ANY OTHER SERVICES PROVIDED BY VERSE HEREUNDER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE THE VERSE PLATFORM, DATA OR ANY OTHER SERVICES, EVEN IF VERSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AVAILABLE REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. FURTHER, IN NO EVENT WILL VERSE’S ENTIRE LIABILITY PURSUANT TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER TO VERSE PURSUANT TO THIS AGREEMENT DURING THE PERIOD OF ONE YEAR PRECEDING THE DATE ON WHICH THE LIABILITY AROSE.
Indemnification. Customer shall indemnify, defend and hold harmless Verse and its officers, directors, employees, representatives and agents (the “Indemnified Parties”) from and against any and all claims, actions, losses, liabilities, damages, costs and expenses (including without limitation attorneys’ fees) harmless from any claims, actions, losses, liabilities, damages, costs and expenses (including attorney’s fees and court costs) made, incurred, assessed or awarded against Verse by any third party arising out of or in connection with (a) any breach by Customer of any representation, warranty or obligation in this Agreement or any allegation that, if proven, would constitute such a breach, (b) Customer’s or any Authorized User’s use of the Verse Platform or (c) any Content or any of the results of Customer’s use of the Verse Platform or the exhibition, display, distribution, performance or presentation of any such Content or results, including any claim by any third party alleging that any of the Content or any such results violate any intellectual property, proprietary, personal or contractual right of any third party, or violates any Law. Customer will not settle or compromise such claim, except with prior written consent of the Indemnified Party. The Indemnified Party may participate in the defense or settlement of such claim at its own expense and with its own choice of counsel.
Customer shall not assign, transfer or sublicense this Agreement or any rights granted in this Agreement. Any assignment, transfer or delegation in contradiction of this provision will be null and void. Verse will have the right to assign this Agreement to a parent company, subsidiary or affiliate, to any successor of Verse or any of its parent companies, subsidiaries or affiliates, or in connection with the divestment by Verse of the business to which this Agreement relates or a reorganization, merger or consolidation or sale or other disposition of such business, Verse or all or some of the assets of Verse. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of Customer and Verse.
Whenever used in this Agreement, unless otherwise specified the terms “includes”, “including”, “e.g.”, “for example”, “such as”, “for instance” and other similar terms are deemed to include the term “without limitation” immediately thereafter. The headings of sections and subsections of this Agreement are for convenience of reference only and are not intended to affect the interpretation or construction of any provision of this Agreement.
This Agreement, including the Cover Sheet and Attachments A, B and C, constitutes the entire agreement, understanding and representations, expressed or implied, between Verse and Customer with respect to subject matters described herein, and supersedes all prior communications, agreements, representations, warranties, statements, negotiations, understandings and proposals, with respect to such subject matters. Any rights not expressly granted herein are reserved.
If, due to an Event of Force Majeure, a party is unable to perform or is delayed in performance of any of its material obligations pursuant to this Agreement (except for payment), then such party will be excused for such non-performance or delay, as applicable, of those obligations affected by the Event of Force Majeure for as long as such Event of Force Majeure continues. The following will be deemed to be an “Event of Force Majeure”: any Act of God, war, terrorism, accident, fire, strike, lock-out or other labor controversy, riot, civil disturbance, act of public enemy, Law, enactment, rule, restraint, order or act of any governmental instrumentality or military authority, failure or inability to obtain any necessary permit or license, failure, delay or impairment of equipment or technical facilities, failure, delay or reduction in transportation facilities or water, electricity or other public utilities, Internet outage or delays or other cause not reasonably within the relevant party’s control.
This Agreement and all questions arising in connection with this Agreement will be governed by, and construed in accordance with, the Laws of the State of New York without giving effect to the principles thereof relating to conflicts of Laws. Each of the parties hereto irrevocably (a) agrees that the federal courts of the Southern District of New York and the New York state courts located in New York, New York will have sole and exclusive jurisdiction over any suit or other proceeding arising out of or based upon this Agreement, (b) submits to the venue and jurisdiction of such courts, (c) consents to personal jurisdiction by such courts and (d) waives any objection that any such court is an improper or inconvenient forum.
All notices required or permitted pursuant to this Agreement will be in writing and delivered by confirmed facsimile, by courier or overnight delivery services, or by certified mail, and in each instance will be deemed given upon receipt. The notice address for Verse is 43-01 22nd Street, Studio 501, Long Island City, NY 11101; and the notice address for Customer is the address specified in the Cover Sheet. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
Waiver of a breach of or right pursuant to this Agreement will not constitute a waiver of any other or subsequent breach or right. If any provision herein will be held by a court of competent jurisdiction to be contrary to Law, that provision will be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by Law, and the remaining provisions herein will remain in full force and effect. This Agreement may be amended only in a document signed by authorized representatives of Customer and Verse.