Customer Services Agreement

Last Updated Nov 2, 2018

This Customer Services Agreement (the “Agreement”) outlines the terms and conditions under which Venzee Inc. (the “Company”) agrees to provide the Services to the Customer (as such terms are defined in the Order Form to which this Agreement is incorporated by reference). This Agreement is effective upon the effective date expressly provided in the first Order Form entered under this Agreement (the “Effective Date”).

Certain capitalized terms used herein are defined in Section 13 of this Agreement. Any capitalized terms used but not defined in this Agreement, may be defined in an Order Form, and such definitions apply hereto.

THE COMPANY AND THE CUSTOMER HEREBY AGREE AS FOLLOWS:

1. SERVICES

Subject to the terms and conditions of this Agreement and any applicable Order Form, and the Site Terms, the Company will provide to the Customer access and use of the Venzee Platform (the “Services”). The Company may make commercially reasonable changes to the Services from time to time. The Company will inform the Customer of any material changes to the Services.

2. CREDITS

2.1 Credits and Purchase Amount – The Services may from time to time require Credits for use in the amounts and subject to the terms and conditions set by the Company from time to time. Credits are purchased under Order Forms for the Purchase Amount defined therein. The Purchase Amount and any Credits purchased therefrom are non-refundable and non-transferrable. The price per Credit is subject to change at the Company’s sole discretion from time to time. To the maximum extent permitted by applicable law, the Customer forfeits any and all rights in and to any Credits held by it upon the termination of this Agreement for any reason whatsoever.

2.2 Payment Options – Payment of the Purchase Amount will be made by credit card or such other payment as may be accepted by the Company from time to time. The Company (and any third party processor) may retain such payment information during the Term in order to process recurring or subsequent payments under Order Forms.

3. CONFIDENTIALITY

3.1 Obligations – Each party will: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates’ employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under this Agreement, while using reasonable care to protect it. Each party is responsible for any actions of its Affiliates’ employees and agents in violation of this Section.

3.2 Exceptions – Confidential Information does not include information that: (a) the recipient of the Confidential Information already knew; (b) becomes public through no fault of the recipient; (c) was independently developed by the recipient; or (d) was rightfully given to the recipient by another party.

3.3 Required Disclosure – Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible: (a) uses commercially reasonable efforts to notify the other party; and (b) gives the other party the chance to challenge the disclosure. The Company may use and disclose the Customer’s Confidential Information for any purpose reasonably necessary to provide the Services.

4. PRIVACY

The Company may collect and generate information and data relating to the Customer through the Customer’s use of the Services (the “Customer Data”). Unless otherwise authorized by the Customer in writing, the Company will only use Customer Data as reasonably necessary: (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; or (c) to comply with applicable law; and (d) as expressly permitted under the Site Terms. The Customer hereby grants to the Company a limited, non-exclusive, worldwide right and license to access, use, exploit, display, reproduce, modify or alter the Customer Data for such purposes during the Term. The Company’s access and use of the Customer Data will at all times comply with all applicable laws, with the terms of this Agreement, and with the Site Terms. Without limitation, the Company will only access and use the User Data in accordance with the purposes for which it is provided under the Site Terms and as authorized under this Agreement.

5. RESTRICTIONS

The Customer is responsible for all activities that occur on the Venzee Platform through the Customer’s User Account.

Unless expressly permitted by an authorized representative of the Company, the Customer will not itself, nor will it authorize, assist or encourage its employees, contractors or any third party (including without limitation any of the Customer’s Users) to:

6. PROPRIETARY RIGHTS

Except as expressly set forth herein, this Agreement does not grant either party any rights (including any Intellectual Property Rights), implied or otherwise, to the other’s content or any of the other’s intellectual property. As between the parties, the Customer owns all Intellectual Property Rights in Customer Data, and the Company owns all Intellectual Property Rights in the Services.

7. THIRD PARTY SERVICES

The Company may from time to time recommend, provide access to, or enable third party software, applications, products, services or website links (collectively, the “Third Party Services”) through the Venzee Platform. Such Third Party Services are made available only as a convenience, and the purchase, access or use of any such Third Party Services is solely between the Customer and the applicable third party services provider (the “Third Party Provider”). Any use of Third Party Services offered through the Venzee Platform is entirely at the Customer’s own risk and discretion, and it is the Customer’s responsibility to read the terms and conditions and/or privacy policies applicable to such Third Party Services before using them. The Company does not provide any warranties with respect to Third Party Services. The Customer acknowledges that the Company has no control over Third Party Services and will not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services on the Venzee Platform or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with the Company. The Company does not guarantee the availability of Third Party Services and the Company may disable access to any Third Party Services at any time in its sole discretion and without notice. The Company is not responsible or liable to anyone for discontinuation or suspension of access to, or disablement of, any Third Party Service.

8. INDEMNITY

The Customer hereby indemnifies and agrees to hold the Company and its Affiliates, and their officers, directors and employees, harmless from and against all demands, complaints, actions, suits, claims, penalties, liabilities, damages, costs, and expenses (including reasonable attorneys’ and professionals’ fees) of any kind whatsoever arising out of (a) any breach by the Customer (or the Customer’s Users) of its covenants, representations, or warranties hereunder; (b) any data leaks or personal data breaches relating to the Venzee Platform that are caused by the Customer or any person accessing the Services through the Customer’s User Account (including without limitation, Customer’s Users); or (c) any act or omission of Customer (or the Customer’s Users) that is in breach of the Site Terms.

9. REPRESENTATIONS AND WARRANTIES

9.1 Customer Representations and Warranties – The Customer hereby represents and warrants to the Company that: (a) none of the information or material provided in connection with its use of the Services will contain or transmit any virus or other code, characters or sequence of characters that are intended by such party to cause damage to or disruption of the Company’s computer systems; (b) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; and (c) it will comply with all applicable laws in the performance of its obligations under this Agreement.

9.2 Disclaimer of Warranties – EXCEPT FOR THE EXPRESS WARRANTIES AND REPRESENTATIONS PROVIDED IN THIS AGREEMENT, THE COMPANY HEREBY DISCLAIMS ANY AND ALL GUARANTEES, REPRESENTATIONS, CONDITIONS AND WARRANTIES RELATING TO THE SERVICES OR THE COMPANY MATERIALS, WHETHER IMPLIED OR STATUTORY, ORAL OR OTHERWISE, ARISING UNDER ANY LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION CONDITIONS AND WARRANTIES WITH RESPECT TO VALIDITY, AVAILABILITY, ACCURACY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND THE COMPANY MATERIALS ARE PROVIDED “AS-IS” AND “AS-AVAILABLE”. THIS DISCLAIMER OF WARRANTIES WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

10. LIABILITY LIMITATION

THE COMPANY WILL NOT BE LIABLE TO THE CUSTOMER FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR REVENUES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE PURCHASE AMOUNT PAID BY THE CUSTOMER UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PREVIOUS TO AN ALLEGED CAUSE OF ACTION.

11. TERM AND TERMINATION

11.1 Term – This Agreement will commence on the Effective Date and will continue until the termination of this Agreement in accordance with this Section 11 (the “Term”).

11.2 Termination by the Customer – The Customer may terminate this Agreement for any or no reason by closing its User Account or by delivering a written request to admin@venzee.com.

11.3 Termination by the Company – The Company may terminate this Agreement for any or no reason immediately on notice to the Customer.

11.4 Effect of Termination – Upon expiry or earlier termination of this Agreement:

12. GENERAL

12.1 Publicity – Subject to the Customer’s branding guidelines provided to the Company from time to time, the Customer agrees that the Company may include Customer’s name and logo in a list of the Company’s customers, online or in promotional materials. The Customer also agrees that the Company may verbally reference the Customer as a customer of the Company’s products or services that are the subject of this Agreement.

12.2 Assignment – Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent will not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect.

12.3 Independent Contractors – The parties are and will be independent contractors and neither party by virtue of this Agreement will have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. No joint venture, partnership or employment relationship will arise between the parties as a result of this Agreement.

12.4 Notices – Any notice provided for or permitted under this Agreement will be treated as having been given immediately on confirmation of delivery. Any notices required or permitted to be given will be in writing and sent to the address provided by the receiving party in the most recent Order Form.

12.5 Governing Law – This Agreement will be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the state of New York and will be considered to have been made and accepted in the state of New York, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by arbitration in the State of New York with an arbiter of the Company’s choosing, and the Customer consents to the jurisdiction of and venue in same and waive any objection as to inconvenient forum. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees.

12.6 Disputes – THE CUSTOMER IRREVOCABLY AND UNCONDITIONALLY AGREES TO WAIVE ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY, OR TO COMMENCE OR PARTICIPATE IN ANY CLASS ACTION AGAINST THE COMPANY (OR ITS AFFILIATES) IN ANY WAY RELATING TO THIS AGREEMENT OR THE VENZEE PLATFORM.

12.7 Modifications – The Company reserves the right to amend this Agreement from time to time with notice to the Customer. Continued use of the Services by the Customer after reasonable notice will be considered acceptance of any such amendments.

12.8 Waiver – A failure of either party to exercise any right provided for herein will not be deemed to be a waiver of such right. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.

12.9 Entire Agreement – This Agreement, which includes any Order Forms and the Site Terms, and any other documents contemplated herein, constitutes the sole and entire agreement between the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, negotiations, conditions, representations, warranties, discussions and understandings, written or oral, with respect to such subject matter.

12.10 Language – This Agreement may be available in languages other than English. To the extent of any inconsistencies or conflicts between the English version and that of another language, the most current English version of this Agreement at https://www.venzee.com/customer-services-agreement will prevail.

12.11 Severability – If a court or other arbiter of competent jurisdiction determines that any one or more of the provisions contained in this Agreement or an applicable Order Form is invalid, illegal or unenforceable in any respect in such jurisdiction, the validity, legality and enforceability of such provision or provisions will not in any way be affected or impaired thereby in any other jurisdiction and the validity, legality and enforceability of the remaining provisions contained herein will not in any way be affected or impaired thereby.

12.12 Force Majeure – If the Company fails to, is prevented from, or is interfered with in any manner whatsoever in performing its duties or obligations hereunder, by reason of any event beyond the Company’s reasonable control (an “Event of Force Majeure”), then the Company’s failure or non-performance will not be deemed a breach of this Agreement provided that notice is given to the Customer without delay, and the Company’s obligations hereunder will be extended without penalty to the extent of any delay resulting from any such Event of Force Majeure.

12.13 Interpretation – To the extent of any conflict between this Agreement, an Order Form, and the Site Terms, including without limitation any conflict between the definitions ascribed to capitalized terms herein and therein, this Agreement will prevail, followed by the Order Form. The headings contained herein are for convenience only and will not be construed to be part of this Agreement.

12.14 Counterparts – This Agreement (and any Order Form) may be executed and delivered electronically and in one or more counterparts, and such counterparts together will together constitute one and the same instrument.

13. DEFINTIONS

13.1 “Affiliate” means, in relation to each of the parties, any entity that directly or indirectly controls, is controlled by, or is under common control with that party.

13.2 “Customer’s Users” means those individuals accessing and using the Venzee Platform through the Customer’s User Account.

13.3 “Company Materials” means any text, photos, graphics, recordings, software, documentation, images, or other content or materials of any kind or nature regardless of storage media, which originates with, or is proprietary to, or is otherwise under the legal ownership of Company, and to which the Company grants access to the Customer during the Term for purposes connected to the Services. Company Materials may include, without limitation, the Venzee Platform.

13.4 “Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient.

13.5 “Credits” means the pre-paid credits used on the Venzee Platform for use of the Services.

13.6 “Intellectual Property Rights” means (a) copyrights and copyrightable works, whether registered or unregistered; (b) trademarks, service marks, trade dress, logos, registered designs, trade and business names (including Internet domain names, corporate names and e-mail address names), whether registered or unregistered; (c) patents, patent applications, patent disclosures and inventions (whether patentable or not); (d) trade secrets, processes, methods, data privacy rights, know-how and rights in designs; and (e) all other forms of intellectual property or any other proprietary rights in every jurisdiction worldwide.

13.7 “Order Form” means a document, or a series of documents, executed by both of the Company and the Customer, under and governed by the terms and conditions of this Agreement, which document(s) describe, among other things, the number of Credits purchased by the Customer, the Purchase Amount for such Credits, and the method of payment authorized for same. Each Order Form is subject to and forms a part of this Agreement and is hereby incorporated by reference.

13.8 “Purchase Amount” means the amount paid under an Order Form by the Customer for the Credits purchased thereunder.

13.9 “Site Terms” means the terms of service, the privacy policy and any other website policy posted on and governing the Venzee Platform, as may exist and be amended from time to time.

13.10 “User Account” means a user account that enables access to, and use of, the Venzee Platform.

13.11 “Venzee Platform” means the software-as-a-service platform accessible at https://www.venzee.com/, that organizes, manages and optimizes data and information relating to inventory and supply chain.