IMPORTANT NOTICE: PLEASE READ THROUGH THESE TERMS CAREFULLY. BY SIGNING UP TO VINDOW’S SERVICES, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, WHICH CONSTITUTE A LEGALLY ENFORCEABLE AGREEMENT GOVERNING YOUR USE OF THE VINDOW ONLINE SERVICE LOCATED AT WWW.VINDOW.COM & WWW.TRAVEL.VINDOW.COM (THE “SERVICE” OR “SERVICES” OR “SITE” OR “SITES”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18, HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE, YOU HAVE THE COMPLETE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, AND YOU ARE NOT A DIRECT COMPETITOR OF OURS (OR OTHERWISE REPRESENT, DIRECTLY OR INDIRECTLY, THE INTERESTS AF A DIRECT COMPETITOR). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF, YOU REPRESENT THAT YOU ARE OVER THE AGE OF 18 AND HAVE REACHED THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE.
AS USED IN THIS AGREEMENT, THE TERM “YOU” OR “USER” MEANS THE ENTITY OR PERSON RESPONSIBLE FOR THE ACCOUNT ESTABLISHED PURSUANT TO THIS AGREEMENT AND EACH USER ACCESSING THE SERVICE BY MEANS OF A VALID ACCOUNT ESTABLISHED BY YOU OR VINDOW RESPECTIVELY (HEREINAFTER “YOU” OR “SUPPLIER” OR “COMPANY”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, THE TERM “YOU” MEANS ALL EMPLOYEES OF YOUR COMPANY WHO ARE GIVEN ACCESS TO THE SERVICE. IF YOU DO NOT HAVE THE REQUISITE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, OR IF YOU ARE A DIRECT COMPETITOR OF OURS (OR REPRESENT THE INTERESTS, DIRECTLY OR INDIRECTLY, OF A DIRECT COMPETITOR) YOU MAY NOT USE THIS SERVICE, EXCEPT WITH VINDOW’S PRIOR WRITTEN CONSENT.
These Terms apply to the VINDOW Services.
This User Agreement (the “Agreement”), the original Sign up Form, any subsequent billing changes, Statements of Work, Master Service Agreement, Change Order whether written or submitted online via Vindow’s service, and any materials available on https://vindow.com specifically incorporated by reference herein, as such materials, including the terms of this Agreement, as may be updated by Vindow from time to time in its sole discretion pursuant to the provisions of this Agreement. You and Vindow may individually be referred to as a party (‘party’) or collectively as the parties (“parties”) in this Agreement.
Vindow Customers. Suppliers of hotel accommodations such as hotels, management or franchise companies acting on behalf of hotels and venues, and other companies that provide travel related services to third parties (collectively referred to hereafter as “Suppliers”) and You may subscribe to one or more of Vindow’s Products in accordance with the pricing set forth in the applicable agreement, or other agreement between Vindow and You for ad placements or other services (each hereinafter an “Statement of Work”).
Features. The Vindow platform allows for the transmission of responses to travel accommodation and other ancillary travel related requests for proposal (“RFPs”) and other related communications among You, third parties and Suppliers. There is a variety of additional functions and features that provide You and Suppliers with a more robust set of account management and RFP and Contract Lifecycle tools based on the applicable Products as designated on the Statement of Work. Vindow reserves the right to update the below features/terms from time to time in its sole discretion, effective upon posting the amended Terms at the domain or subdomains www.vindow.com where the prior version of the Terms was posted or by communicating these changes through any written contact method Vindow has established with Supplier.
Services. The Vindow Services include, but are not limited to the following features and functions: RFP Management, Business Intelligence, and Contract Management.
Fees & Charges. You agree to pay all fees and other charges in accordance with the Agreement. All fees are due net thirty (30) days from invoice date or as otherwise set forth in the Statement of Work or any invoice issued by Vindow corresponding thereto. If you do not pay the fees or other charges when they are due, then a finance charge of two percent (2%) plus $100 per month or the maximum rate allowed by law if less will be assessed. Payment shall be by credit card or check unless otherwise specified on your Statement of Work or invoice corresponding thereto. Except where prohibited by applicable laws, if You pay any fees due hereunder via credit or debit card, then Vindow reserves the right to charge You a surcharge of three percent (3%) of the total amount due hereunder, and You hereby consent to such charge being made against the credit or debit card provided by You.
The fee for the Vindow Products will be equal to the fees currently in effect under the current Vindow schedule of fees for the Products selected in the Statement of Work. If You are a monthly subscriber, the initial fee will be payable the same day as an order, and, thereafter, Vindow will automatically bill Your credit card, debit card or bank account on the same day each month as the day of the first payment. If You are a yearly subscriber, the fees will be billed annually and are non-refundable. You are responsible for paying all account user fees ordered for the entire Term, without regard to whether all account users are active on the Vindow platform. You must provide Vindow with a valid credit card, debit card, bank account number or approved purchase order as a condition to signing up for the Service. A Vindow account administrator may add additional account users by executing an additional written Statement of Work or Change Order or using Vindow’s online billing system. Additional account users will be subject to the following: (i) The use Term of additional account users will be contemporaneous with the Term of the Statement of Work; (ii) Users added in the middle of a billing cycle will be charged in full for that billing month. A pro-rated credit will be added for the unused days of the previous billing period, if any; and (iii) Account users added in the middle of a billing cycle will be charged in full for that billing month and will reset the billing period (annually/monthly) to start at the date of change. A pro-rated credit will be added for the unused days of the previous billing period.
The current Vindow pricing model is based in part on a flat rate, which fee(s) may be changed from time to time at Vindow’s sole discretion. Vindow will charge any software customization fees as mutually agreed upon in writing mutually by You and Vindow pursuant to a separate written agreement. Vindow reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days’ prior notice to You.
If You update Your payment information in your Vindow account, Vindow will charge the latest account provided by You. You represent that You have the legal right to use any payment account or methodology that You use to purchase Products and Services from Vindow. You agree to update billing and account information within three (3) business days of any change to applicable payment information, as well as to Your legal name, street address, e-mail address, and the names and telephone numbers of an authorized billing contact and authorized account administrator. If the contact information You provide is false or fraudulent, Vindow reserves the right to terminate Your access to the Service, in addition to any other legal remedies. All payments shall be in United States currency and are final. Vindow will not provide full or partial refunds.
In the event of termination of this Agreement, You agree to pay the balance due on Your account (plus any applicable late payment charges). You agree that Vindow may charge such unpaid fees and charges to Your credit card, debit card, or bank account, or otherwise bill/invoice You for such unpaid fees and charges.
You may reasonably and in good faith dispute an invoiced amount, that incorrectly lists Services, fees, metrics, other than those listed on the applicable Statement of Work or invoice corresponding thereto, within thirty (30) days after receipt, provided that You will promptly pay the undisputed portion of the invoice and will only withhold payment of the disputed portion until the dispute is resolved. The parties will negotiate in good faith to resolve any payment dispute within ninety (90) days.
If You exceed the contracted level of Services, if any, during the Term set forth in the Statement of Work, You will be charged as specified in your Statement of Work, or if not specified, using the then-current rates for the overage. You are responsible for all taxes, charges or duties including, without limitation, sales, use, value added, royalty or withholding taxes imposed by a federal, state, provincial, local or other government entity on Services provided under this Agreement, excluding taxes based on Vindow’s net income.
If You request Vindow’s personnel to travel in conjunction with the Services, then all travel-related expenses, including but not limited to airfare, local transportation, hotel, and daily per diem for Vindow personnel will be charged separately. Vindow’s charges will be invoiced after they are incurred and shall be payable by You in accordance herewith.
Limited License. Subject to these terms and conditions, and any additional terms contained in an Statement of Work, if any, Vindow will provide You with a worldwide, non-exclusive, non-transferable and revocable license, without the right to grant sublicenses, to access and use the Services, as upgraded from time-to-time. You may use the Services only for purposes of performing your internal business operations. You may not use the Services as part of a commercial time-sharing or service-bureau operation or in any other resale capacity whatsoever. Except for the foregoing license, no other rights in the Services are granted to You hereunder, and the Services are and will remain the sole and exclusive property of Vindow and its licensors, if any, whether the Services are separate or integrated with any other products, services or otherwise.
Compliance with Laws. You agree (i) to abide by all applicable local, state, national, and international laws and regulations; (ii) not to use the Services for illegal purposes; (iii) not to impersonate any person or entity or engage in any fraudulent business practice, including generating invalid impressions, clicks, or other actions; (iv) not to display or transmit any unlawful, harmful, hateful, racially, ethnically or objectionable material of any kind; (v) not to distribute in any way files that contain viruses, corrupted files, or any other similar programs; and (vi) not to interfere or disrupt Vindow’s operations or functionality. If Vindow reasonably believes You are engaged in any of these activities, Vindow may immediately suspend or terminate Your access to any of the Services. Vindow may also take any self-help remedies necessary to prevent such conduct, including, but not limited to, deleting information from Your account on behalf of those individuals who lodge complaints with Vindow or Vindow’s web-hosting company. You are still responsible for full payment of any fees due and owing pursuant to a Statement of Work or any invoice corresponding thereto, even if your access to the Services is suspended or terminated for Prohibited Uses.
You represent and warrant that, Your affiliates, and their employees, agents, representatives, and any entity or persons having effective control over Supplier, is not subject to or resident in any country subject to economic or trade sanctions by the U.S. State Department and/or OFAC or are listed as a “Specially Designated National,” a “Specially Designated Global Terrorist,” a “Blocked Person,” or similar designation under the OFAC sanctions regime. Any breach of this section shall be deemed a material breach of this Agreement and Vindow may immediately terminate this Agreement and any and all Services corresponding thereto.
You further warrant that You will not engage in any commercial bribery, kickback schemes, or other forms of improper payments to any person, private or public, and agrees that You will not create or submit any false, inaccurate, or misleading invoices or other business documents related to any use of the Site or Services. You will permit, upon request, Vindow reasonable access to Your books and records and/or to conduct periodic or ad hoc audits, as Vindow deems necessary. Upon request, you agree to provide Vindow with a written certification attesting your compliance with the foregoing anticorruption requirements.
Account Access. Vindow will assign You one or more login IDs and passwords that will enable You to access the Services. Each user ID is unique to the assigned individual and may not be shared with others, including other personnel. You shall take reasonable precautions to protect against theft, loss or fraudulent use of such IDs and passwords, and You are solely responsible for any losses arising from another party’s use of such IDs and passwords, either with or without Your knowledge. Provided Your account is in good standing, Vindow may provide one or more login IDs and passwords to other employees of You or Your parent or affiliated company. Such additional logins IDs and passwords may be subject to an additional charge and in the sole and absolute discretion of Vindow.
Return of Your Content. Upon Your written request made within 30 days after the effective date of expiration or termination of this Agreement, Vindow will, provided You are not in breach of any of its obligations under the Agreement and upon Your payment of the applicable fees, make available to You for download a file of Your content in its then current format. After such 30-day period, Vindow shall have no obligation to maintain or provide any content and shall thereafter, unless legally prohibited, delete all content maintained in its production systems, provided however, that Vindow may retain archival copies of content on offline backup media for a reasonable period of time not to exceed two (2) years following expiration or termination of any Statement of Work.
User Provided Content. You agree that You are solely responsible for Your actions, its products, its services, and the content of Your transmissions and activity on the Services. You represent and warrant that all data, materials and content You provide for use on the Services (the “User Content”), as well as any user provided video is accurate, current, is owned by You or You have the right to grant the license set forth below in these Terms, and that provision and/or use of the User Content hereunder does not violate or infringe the intellectual property, privacy or publicity rights of any third party, and that all placements of User Content have been approved for Vindow’s use. You shall defend, indemnify and hold Vindow harmless from and against all claims, damages, liabilities, fines, costs and expenses including reasonable legal fees incurred by Vindow or which are agreed by Vindow to be paid by way of settlement or compromise, arising out of any third-party claim due to a breach of the foregoing representations and warranties or any violation of applicable law by You. You shall not be entitled to settle or compromise any such claim made against Vindow without Vindow’s prior written consent, such consent not to be unreasonably withheld.
Notwithstanding anything to the contrary in these Terms or in any Statement of Work, You hereby acknowledge and agree that Vindow may use all User Content, including that which is specific to You, for the purpose of creating aggregated and/or anonymized statistics concerning use of the Services (the “Aggregate Data“). Vindow will be the sole owner of the Aggregate Data and, notwithstanding anything to the contrary, shall be free to use and disclose the Aggregate Data for any commercial purposes including, but not limited to, publicizing usage of the Services, providing information on general industry trends, and providing benchmarking data to Vindow customers. Aggregate Data shall not identify You as the source of any specific piece of data.
Except as otherwise set forth herein, You retains any and all rights it may possess to your content provided to Vindow by You through the use of the Services or collected from others by Vindow on Your behalf. You grant Vindow a limited, non-exclusive right and license to (i) use the User Content (including copyright, trademark, patent, publicity or other rights) for Vindow to operate the Services and to disclose the User Content to third-party service providers to operate the Services, and (ii) subject to any applicable third party copyright, trademark or other rights, to use images of Users’s Content on the Site for the purposes of advertising and promoting Vindow, including without limitation in marketing, training or investment materials.
User Affiliates. You acknowledge and agree that if You are affiliated with a hotel representation company, hotel management company, hotel chain or franchise, and/or is a member of a hotel association (each such company, franchise or association referred to hereinafter as a “User Affiliate”), You may have authorized such User Affiliate to take certain actions on Your behalf including without limitation soliciting, receiving and/or responding to RFPs. You and User Affiliate each understand and agree that they are jointly responsible for keeping Vindow informed of the existence and status of the User Affiliate relationship, and any changes thereto, and agree that Vindow may (but is not obligated to) treat a User Affiliate as authorized account user by You to solicit, receive and respond to RFPs on behalf of You and to perform other customary functions of User Affiliates unless and until Vindow has received written authorization with respect to such User Affiliate.
You and User Affiliate each represent and warrant that use of the Services by You, and/or by any User Affiliate on behalf of You, does not and shall not violate the terms and conditions of any agreement between You and the User Affiliate. All aspects of Your relationship with a User Affiliate, including without limitation whether and to what extent a User Affiliate is authorized to use the Services on behalf of You and/or to receive any fees for RFPs awarded to You which originate with User Affiliate, must be managed directly between You and any User Affiliate.
You and any User Affiliate shall each be jointly and severally liable and agree to defend, indemnify and hold Vindow harmless from and against any and all liabilities, damages and costs incurred by Vindow in connection with any dispute between You and any User Affiliate. You and User Affiliate agree that, unless otherwise agreed in writing between Vindow and You, any changes to Your relationship with a User Affiliate shall not alter or reduce Your payment or other obligations hereunder during the remainder of the Term of any Statement of Work and such Statement of Work shall continue to apply to the same property (and will not be transferred to another property or to User Affiliate) during the remainder of the Term of such Statement of Work. In the event that any change to the ownership, management or franchise affiliation of You requires You to rebrand or otherwise alter its property listing on the Services, Vindow will work in good faith with You to make the necessary changes within ten (10) business days after receiving reasonable electronic notice of such required change(s).
Prohibited Use. No competitors or future competitors are permitted access to the Vindow Site. You agree that You will not copy, record, publish, extract, scrape, replicate, reproduce, use or resell for any competing commercial purpose any information and/or content on the Vindow Site. You agree that You will not reverse engineer, disassemble or decompile the Services or cause or permit the reverse engineering, disassembly or decompilation of the Services. All users of Services and visitors to the Vindow websites agree not to use any manual or automated means (of any type) to capture or extract data in bulk from Vindow’s websites. If You do so, then You agree that Vindow is suffering irreparable injury and You agree to pay all reasonable attorney’s fees and costs incurred in enforcing these provisions. Vindow may, at its sole and absolute discretion, immediately terminate access to the Services should any Supplier’s conduct fail to conform to any of these Terms.
Production Environment. Your access is limited to the version of the Services in Vindow’s production environment. Vindow may from time to time at its sole discretion update the Services, including but not limited to the display, and reserves the right to add and/or substitute functionally equivalent features in the event of product unavailability, end-of-life, or changes to software requirements without liability except regarding intellectual property rights of You. Your use of the Services after the terms have changed constitutes acceptance of the new terms. Vindow reserves the exclusive right, at its sole discretion, to determine all matters concerning the Vindow Services and may change the format and page placement of all data at any time without prior notice. The Vindow Services may contain links to third party websites. These linked sites are not under the control of Vindow, and Vindow is not responsible for the content of any linked site.
Access to Services. Vindow will provide You online access to and use of the Services via the Internet by use of Your internet browser. The Services will be hosted on a server that is maintained by Vindow or its designated third-party supplier or data center. You are solely responsible for obtaining and maintaining at your own expense, all equipment needed to access the Services, including but not limited to Internet access and adequate bandwidth.
Confidential Information. For purposes of these Terms, “Confidential Information” means any information, regardless of form, proprietary to or maintained in confidence by either party, including, without limitation, any Supplier data, information, technical data or know-how relating to discoveries, ideas, inventions, software, designs, specifications, processes, systems, diagrams, research, development, business plans, strategies or opportunities, and information related to finances, costs, prices, suppliers, vendors, customers and employees which is disclosed by either party or on its behalf whether directly or indirectly, orally, visually, or in writing, to the other party or any of its employees or agents. The terms and conditions of any order for Vindow Products or Services shall be deemed Confidential Information of both Vindow and You.
Both You and Vindow may use and copy such confidential information as is necessary to perform their obligations under this Agreement and for no other purpose except that Vindow may use Your Confidential Information for purposes other than the provision of Service only in an aggregated, anonymized form, such that You are not identified. You and Vindow may disclose such confidential information to their employees and You and Vindow may disclose to its affiliates, both on a “need-to-know” basis, provided that You and Vindow shall ensure that any such employees or affiliates are subject to obligations of confidentiality with similar effect to this section. Vindow may also disclose Your Confidential Information on a need to know basis to its subcontractors who are providing all or part of the Service.
The restrictions in this section “Confidential Information” does not apply to any information which: (i) at the time of disclosure or thereafter is generally available to and known by the public or any third party (other than as a result of an unauthorized disclosure directly or indirectly by the non-disclosing party),(ii) was or becomes available to the non-disclosing party on a non-confidential basis from a source other than the disclosing party, (iii) has been independently acquired or developed by the non-disclosing party without violating any of its obligations under this Agreement.
The recipient party may disclose Confidential Information pursuant to the requirements of a governmental agency or operation of law, provided that it gives the disclosing party reasonable advance notice sufficient to contest such requirement of disclosure, unless it is prevented from providing such notice by the government agency or operation of law.
The obligations of Vindow set forth in this Section shall not apply to any suggestions and feedback for product or service improvement, correction, or modification provided by You in connection with any present or future Vindow Product or Service, and, accordingly, neither Vindow nor any of its clients or business partners shall have any obligation or liability to You with respect to any use or disclosure of such information.
Disclaimer of Warranty. ALL SERVICES GOVERNED BYTHESE TERMS ARE PROVIDED “AS IS” AND ‘AS AVAILABLE’ BASIS. VINDOW DISCLAIMS ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. VINDOW DOES NOT REPRESENT OR WARRANT BUT WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE SERVICES ARE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, AND THAT THE SERVERS USED FOR THE SERVICES WILL BE FREE OF VIRUSES, OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT USE OF OR CONNECTION TO THE INTERNET PROVIDES THE OPPORTUNITY FOR UNAUTHORIZED THIRD PARTIES TO CIRCUMVENT SECURITY PRECAUTIONS AND ILLEGALLY GAIN ACCESS TO THE SERVICES AND CONTENT. ACCORDINGLY, VINDOW CANNOT AND DOES NOT GUARANTEE THE PRIVACY, SECURITY OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OVER OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET. IN ORDER TO PROTECT YOUR CONTENT, VINDOW MAY SUSPEND YOUR USE OF THE SERVICES IMMEDIATELY, WITHOUT PRIOR NOTICE, PENDING AN INVESTIGATION, IF ANY BREACH OF SECURITY IS SUSPECTED. YOU ACKNOWLEDGE THAT THE SERVICES AVAILABILITY MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, AND ELECTRONIC COMMUNICATIONS. VINDOW IS NOT RESPONSIBLE OR DEEMED TO BE IN DEFAULT FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS, OR UNAVAILABILITY RELATED TO YOUR APPLICATIONS, YOUR CONTENT, OR YOUR EQUIPMENT, OR THE ACTS OR OMISSIONS OF ANY USER OF THE SERVICES. YOU ACKNOWLEDGE THAT VINDOW CANNOT AND SHALL NOT COMMIT TO THE VOLUME OR QUALITY OF RFPs THAT ARE SUBMITTED THROUGH THE SITE.
Limitation of Liability. Vindow’s liability to You, Your affiliates, registered agents, assignees, registrants or any third party claims, for claims seeking indemnity, or for any recoverable losses, damages, or litigation and attorneys’ fees or costs arising with respect to the Vindow Site, these Terms or any Statement of Work shall be limited to the amount of your actual direct damages, not to exceed (in the aggregate for all claims) the total annual amount paid to Vindow under the applicable agreement during its then-current contract year at the time of the incident giving rise to liability. If no fee is paid to Vindow, the Vindow retains no liability. These limitations of liability will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in these Terms or any Statement of Work.
IN NO EVENT WILL VINDOW OR ITS PARTNER WEBSITES BE LIABLE OR INDEMNIFY YOU FOR: (i) ANY DAMAGES CAUSED BY YOUR FAILURE TO PERFORM YOUR RESPONSIBILITIES; (ii) ANY CLAIMS OR DEMANDS OF THIRD PARTIES OR (iii) ANY LOST PROFITS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, LOSS OF USE, LOSS OF DATA, LOST SAVINGS, COST OF COVER OR OTHER CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SITE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF VINDOW OR ITS PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
You shall defend, indemnify and hold harmless the Vindow from and against any and all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with (i) Your or any Vindow platform user’s use of the Service or collection, use, disclosure, or cross-border transfer of any Your content and data; (ii) Your or any Vindow platform user’s use of the Service or collection, use, disclosure, or cross-border transfer of any Your content and data; or (iii) the breach or alleged breach by You of any of Your obligations, representations, or warranties under this Agreement; provided in any such case, that Vindow (a) gives written notice of the claim promptly to You (except that Vindow’s failure to promptly notify You will not limit, impair, or otherwise affect Vindow’s rights under this section unless You are prejudiced by that failure and then only to the extent of the prejudice); (b) gives You sole control of the defense and settlement of the claim (except You may not settle any claim without Vindow’s prior written consent, unless the settlement includes a full and final release of all claims against Vindow and does not impose any obligations on Vindow); (c) provides to You reasonable assistance (including reasonable access to information in the possession or control of Vindow); and (d) has not compromised or settled such claim.
Account Liability. You are solely responsible for the actions of its employees and agents that use the Services on Your behalf, including without limitation to submit, accept, or reject RFPs and for related communications with other users of the Services. You assume all risk in dealing with other users of the Services and shall be responsible for all communication with each other and if applicable, separately executing contracts with any other party. Any dispute regarding any product or service, or failure to provide agreed products and services must be resolved directly between You and such third party(ies). Vindow is not responsible for any breach by either party of the terms of any transaction or associated transaction-related activities.
Choice of Law & Arbitration. This Agreement shall be governed and construed in accordance with the laws of Florida, excluding that State’s choice-of-law principles, and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise, shall likewise be governed by the laws of Florida, excluding that State’s choice-of-law principles. If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator. The place of arbitration shall be Miami-Dade County, Florida. The arbitration shall be governed by the laws of the State of Florida, exclusive of that State’s choice of law provisions and all claims relating to or arising out of this Agreement, or the breach thereof, whether sounding in contract, tort, or otherwise, shall likewise be governed by the laws of Florida, excluding that State’s choice-of-law principles. In making determinations regarding the scope of exchange of electronic information, the arbitrator(s) and the parties agree to be guided by The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. Time is of the essence for any arbitration under this agreement and arbitration hearings shall take place within 90 days of filing and awards rendered within 120 days. Arbitrator(s) shall agree to these limits prior to accepting appointment. Each party shall bear its own costs and expenses and an equal share of the arbitrators’ and administrative fees of arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Equitable Remedies. You and Vindow acknowledge and agree that (a) a breach or threatened breach by such party of any of its obligations under this Agreement would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and (b) if a breach or a threatened breach by such party of any such obligations occurs, the other party hereto will, in addition to any and all other rights and remedies that may be available to such party at law, at equity, or otherwise in respect of such brief, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to (i) post a bond or other security, or (ii) prove actual damages or that monetary damages will not afford an adequate remedy. Each party to this Agreement agrees that such party shall not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this section.
Vindow’s Intellectual Property. You acknowledge that, except for Your Content, Vindow or its licensors retain all copyright, trademark, trade secret, patent and other proprietary and intellectual property rights to the Services (including without limitation to any software and modifications thereto) and to any related documentation and marketing materials, regardless of whether such intellectual property notices (i) appear in the Services or in related documentation or materials, or (ii) have been filed with applicable governmental agencies. The Services and all equipment, infrastructure, websites and other materials provided by Vindow in the performance of Services will at all times remain the exclusive, sole and absolute property of Vindow or its licensors. Subject to these Terms, You may access and use the Services solely for conducting Your own business operations or Your clients’ business operations outsourced to You, and not in any resale capacity.
Your Intellectual Property. Vindow acknowledges that You retain all copyright, trademark, trade secret, patent and other proprietary and intellectual property rights to the information You provide when using the Services. You shall retain ownership and control over all of Your service marks and trademarks. Nothing in these Terms will directly or indirectly be construed to assign and/or grant Vindow any right of ownership, title or interest in the information owned by You, or any intellectual property rights relating thereto, except as to display such information within the Services.
Digital Millennium Copyright Act. To the best of Vindow’s knowledge, all material published by Vindow on its web pages is done in full agreement with the original copyright owners. If third party comes across a situation where a third-party suspects that this may not be the case, in accordance with the Digital Millennium Copyright Act (DMCA), that party shall contact Vindow as follows:
ATTN: General Counsel
2222 Ponce de Leon
Miami, Florida 33134
Pursuant to the DMCA, the notice must include the following information: (i) identification of the copyrighted work the person is claiming has been infringed; (ii) identification of the material the person is claiming is infringing the copyrighted work and information reasonably sufficient to permit Vindow to locate the material. Please provide a link if possible; (iii) the person’s address, telephone number, and email address; (iv) a statement that the person has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; (v) a statement that the information the person provided in the notification is accurate, and under penalty of perjury, that the person is the copyright owner or that the person is authorized to act on behalf of the copyright owner; (vi) the person’s physical or electronic signature. Vindow cannot take action regarding the person’s notice unless all of the required information is provided. In accordance with the DMCA, Vindow reserves the right to terminate or disable, in appropriate circumstances and at Vindow’s sole and absolute discretion, Your account if You are determined to be a repeat offender.
Force Majeure. Vindow will not be in default or otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond its reasonable control, including any act of God, criminal acts, distributed denial of service attacks, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, pandemics, riots, failures or delays in transportation or communications, or any act or failure to act by You, Your employees, agents, or contractors. The You and Vindow will promptly inform and consult with each other as to any of the above causes that, in their judgment, may or could be the cause of a substantial delay in the performance of their respective obligations hereunder. Vindow is not liable for excusable delay.
Third Party Beneficiaries. These Terms are not intended to, and do not confer any rights, benefits or remedies upon any person other than the parties.
Notice. Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other Party at the addresses set forth on this Agreement or Statement of Work (or to such other address that the receiving Party may designate from time to time in accordance with this section). Each Party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile, or electronic mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.
Assignment. Except for assignment to a party’s affiliate (any entity which directly or indirectly controls, is controlled by, or is under common control with such party), or in the case of a merger, acquisition or sale of all or substantially all assets not involving a direct competitor of the other party, neither party may assign or otherwise transfer any right or obligation set forth in the Agreement without the other party’s prior written consent, not to be unreasonably withheld or delayed.
Publicity. You agree that Vindow may use Your organization’s name and logo to identify You as a customer of Vindow on Vindow’s website, in investor documents (whether or not filed with the Securities and Exchange Commission), and as a part of a general list of Vindow’s customers for use and reference in Vindow’s corporate and marketing literature. Additionally, You agree that Vindow may issue a press release identifying You as a Vindow customer, subject to Your prior approval which will not be unreasonably withheld or delayed.
Entire Agreement. These Terms supersede any prior agreement or understanding between the parties whether oral or written in relation to its subject matter, and may only be modified by a written amendment signed by authorized representatives of each party, except solely in connection with additional purchases under an active Statement of Work, which may be transacted via email. Any additional or conflicting terms contained in any third party purchase order, proposal or other document shall be deemed to be rejected by Vindow without need of further notice of objection, even if such document is acknowledged or accepted by Vindow, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Vindow. The provisions of these Terms shall be deemed severable, and the unenforceability of any one or more provisions shall not affect the enforceability of any other provisions. Vindow’s failure to exercise or enforce any right, power or remedy under these Terms shall not operate as a waiver thereof.