Discovery Suite Subscription Agreement
Welcome to ViSenze, a fast-growing, global Retail AI platform provider, owned and operated by ViSenze Pte Ltd. (“ViSenze”). This Discovery Suite Subscription Agreement (this “Agreement”) contains terms and conditions that govern your acquisition of subscriptions to, and use of, the Services (as defined below), and is a contract between ViSenze, and you or the entity or organization that you represent.
If you are an individual using the Services for your own purposes: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement.
If you are using the Services on behalf of an entity or organization that you represent: (1) all references to “Customer” are to that entity or organization and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside, and that you have the right, power and authority to enter into this Agreement on behalf of Customer. For the avoidance of doubt, the Services are not available to persons who are not legally eligible to be bound by this Agreement.
This Agreement becomes binding and effective on Customer upon the earliest of: (1) when you access or use the Services, or (2) when you click “Sign up” or similar button or checkbox referencing this Agreement (the date of such event shall be known as the “Effective Date”).
Capitalized terms not otherwise defined in this Agreement will have the respective meanings set out in Clause 22. ViSenze may modify this Agreement from time to time, subject to the terms in Clause 23.
1. Grant of Right
1.1 Subject to the terms of this Agreement, ViSenze hereby grants to Customer the right to access and use the Services during the Service Term for Customer’s Shopify Store.
1.2 As between the Parties, Customer controls Customer’s Shopify Store and its individual components (each, a “Customer Component”), whether owned, leased or licensed by Customer, located on Customer’s premises or cloud-based, used by Customer on a software-as-a-service basis or otherwise. Customer will be able to use the Services by establishing integrations or other connections to one or more Customer Components (each, a “Connection”). By implementing a Connection to a Customer Component, Customer hereby grants to ViSenze the right, and is expressly instructing ViSenze, to access and interoperate with that Customer Component during the Service Term in order to provide and support the Services. Customer is responsible for complying with all applicable third-party terms, policies and licenses governing its access and use of Customer Components and associated data (collectively, “Third-Party Terms”).
1.3 Through Customer’s configuration and use of Connections and Services, Customer has control over the types and amounts of data from Customer’s Shopify Store that are submitted for Processing by the Services (including catalog data, transactional data, search log data) (collectively, “Customer Data”). By submitting Customer Data to the Services, Customer hereby grants to ViSenze the right, and is expressly instructing ViSenze, to Process Customer Data during the Service Term in order to provide and support the Services and as otherwise provided in this Agreement.
1.4 All rights granted by each Party to the other under this Clause 1 are limited, non-exclusive and, except as otherwise provided in this Agreement, non-transferable.
Subject to this Agreement, ViSenze may, at its option, make available Support to Authorized Users.
3 Discovery Suite Subscription
3.1 ViSenze will make the Services available to Customer until the earliest of (a) termination by ViSenze, at any time, in its sole discretion; or (b) termination by Customer by not using the Services and providing written notice to ViSenze or pursuant to Clause 23
3.2 ViSenze reserves the right to implement usage caps for use of the Services.
3.3 Additional terms and conditions, including Supplemental Terms, may apply to Services and Customer agrees any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
3.4 If Customer subscribes to additional Services through an order form (each an “Order Form”), the Order Form may contain additional terms and conditions and information regarding the Services the Customer is subscribing to. Unless otherwise expressly set forth in any such additional terms and conditions applicable to the specific Service which Customer chooses to use, those additional terms are hereby incorporated into this Agreement in relation to Customer’s use of such Service.
4 APIs and Tools
One or more APIs will be available to Customer to assist with Customer’s implementation of Connections, and ViSenze makes client libraries available to facilitate Customer’s coding against the API(s). In addition, Authorized Users may install a ViSenze-produced software agent on certain Customer Components to support Customer’s collection of Customer Data. The code for these libraries and agents (collectively, “Ancillary Tools”) are available in public repositories at https://github.com/visenze and are subject to the applicable open source licenses referenced in those repositories. Customer determines and controls what APIs and Ancillary Tools (if any) to use in connection with the Services. By using an API or Ancillary Tool in connection with the Services, Customer hereby agrees to do so in accordance with the terms of this Agreement.
5 Hosting and Other Providers
ViSenze uses third-party hosting providers, other service providers and ViSenze Affiliates to support the provision of the Services and Support in the ordinary course of its business, i.e., not specifically for Customer (collectively, “Ordinary Course Providers”). ViSenze reserves the right to engage and substitute Ordinary Course Providers as it deems appropriate, but shall: (a) remain responsible to Customer for the provision of the Services and Support and (b) be liable for the actions and omissions of its Ordinary Course Providers undertaken in connection with ViSenze’a performance of this Agreement to the same extent ViSenze would be liable if performing the Services or Support directly. In no event shall providers of Customer Components be deemed Ordinary Course Providers for any purpose under this Agreement.
6 Security and Privacy
6.1 Each Party has obligations with respect to the security of the Services and Customer Data. Taking into account the nature and types of Customer Data, ViSenze will employ administrative, physical and technical measures in accordance with applicable industry practice to protect the Services and prevent the accidental loss or unauthorized access, use, alteration or disclosure of Customer Data under its control during each Service Term.
6.2 Customer is responsible for properly configuring the Services, enabling single sign-on for Customer’s accounts, and securing access passwords, keys, tokens or other credentials used by Customer in connection with the Services (collectively, “Customer Credentials”). Customer agrees to use reasonable efforts to prevent unauthorized access or use of the Services and to promptly notify ViSenze if Customer believes (a) any Customer Credentials have been lost, stolen or made available to an unauthorized third party or (b) an unauthorized third party has accessed the Services or Customer Data.
6.3 Except for limited Personal Data in Account Data, ViSenze does not require Personal Data for Customer’s access and use of the Services. Customer shall limit Personal Data in Account Data to only that necessary for the creation and administration of its ViSenze accounts. With regard to Customer Data, Customer shall not use the Services to Process any Sensitive Personal Data and shall use reasonable efforts to restrict the inclusion of other Personal Data in Customer Data.
7 Customer Responsibilities and Restrictions
7.1 Customer will be solely responsible for: (a) Customer’s Environment, including as necessary to enable Authorized Users’ access and use of the Services; (b) Account Data, Customer Data and Customer Credentials (including activities conducted with Customer Credentials), subject to ViSenze’s Processing obligations under this Agreement; (c) providing any required notices to, and receiving any required consents and authorizations from, Customer Component providers, Authorized Users and persons whose Personal Data may be included in Account Data, Customer Data or Customer Credentials; and (d) ensuring use of the Services is only for Customer’s Environment.
7.3 No provision of this Agreement includes the right to, and Customer shall not, directly or indirectly: (a) enable any person or entity other than Authorized Users to access and use the Services; (b) attempt to gain unauthorized access to any Services or its related systems or networks; (c) use any Service to access ViSenze Intellectual Property Rights except as permitted under this Agreement; (d) modify, copy or create any derivative work based upon a Service or any portion, feature or function of a Service; (e) resell, distribute or otherwise make available any Service to any third party, including as part of a managed services offering; (f) except to the extent limited by Applicable Law, reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, the Service or access or use the Services in order to (1) copy ideas, features, functions or graphics, (2) develop competing products or services, or (3) perform competitive analysis; (g) remove, obscure or alter any proprietary notice related to the Services; (h) send or store Malicious Code; (i) use or permit others to use the CServices in violation of Applicable Law; or (j) use or permit others to use the Services other than as described in this Agreement.
7.4 The Customer represents and warrants to ViSenze that it will not use the Services for any illegal, unethical or abusive purposes or to develop or create a similar or competitive product or service to the Services and that it will be responsible for use of the Services by its end users including but not limited to the following:
(a) upload or otherwise transmit any files containing content that is unlawful under the Applicable Laws, Objectionable or otherwise harmful or contrary to public interest, public order or national harmony in all relevant jurisdictions;
(b) harm minors in any way;
(c) upload or otherwise transmit any files that the Customer (including Authorized Users or its customers) does not have a right to make available under the Applicable Laws or under contractual or fiduciary relationships;
(d) upload or otherwise transmit any files that contains content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any person;
(e) upload or otherwise transmit any files that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment
(f) engage in unlawful activity or intentionally or unintentionally violate any Applicable Law, statute, ordinance, regulation, rule or code, including any regulations, rules, notices instructions or directives of any regulatory body or authority, governmental agency or national or other securities exchange of any jurisdiction; and/or
(g) contribute any illegal or unethical or abusive content in any files, or use the Service for any abusive or illegal activity.
7.5 ViSenze reserves the right to investigate potential violations of the above provisions of this Clause 7. In the event ViSenze reasonably believes a violation has occurred, in addition to any other remedies available at law or in equity, ViSenze will have the right to suspend Authorized Users suspected of the violation from accessing the Services for so long as is reasonably necessary to address the potential violation. For clarity, ViSenze reserves the right, but does not assume any obligation to Customer, to take any of the actions described in this Clause 7.4.
8 Compliance with Applicable Laws
Customer agrees to comply with all Applicable Laws with respect to its performance of its obligations and exercise of its rights under this Agreement. Without limiting the foregoing:
8.1 Customer shall comply with Applicable Laws concerning the privacy and protection of Personal Data. Without limiting Clause 7.1, Customer will be solely responsible for providing any notices required by Applicable Law to, and receiving any consents and authorizations required by Applicable Law from, persons whose Personal Data may be included in Account Data, Customer Data or Customer Credentials; and
8.2 will not cause ViSenze to fail to comply with Applicable laws
As between the Parties: (a) Customer owns all right, title and interest in and to Customer’s Environment and Customer Data, including in each case all associated Intellectual Property Rights, and (b) ViSenze owns all right, title and interest in and to the Services, any data generated from the usage of the Services, and Feedback, including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one Party to the other in this Agreement, all rights are reserved by the granting Party.
10.1 As used in this Agreement, “Confidential Information” means any information disclosed by one Party, its Affiliates, business partners or their respective employees, agents or contractors (collectively, the “Discloser”) that is designated as confidential, either orally or in writing, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Confidential Information includes without limitation: (a) Customer Data; (b) information relating to the Discloser’s or its Affiliates’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (c) third-party information that the Discloser is obligated to keep confidential; and (d) the terms of this Agreement. However, Confidential Information does not include any information that: (i) was known to the Party that receives any Confidential Information (the “Recipient”) prior to receiving the same from the Discloser in connection with this Agreement; (ii) is independently developed by the Recipient without reference to or use of the Discloser’s Confidential Information; (iii) is acquired by the Recipient from another source without restriction as to use or disclosure; or (iv) is or becomes publicly available through no fault or action of the Recipient.
10.2 The Recipient shall not (a) use the Discloser’s Confidential Information for any purpose outside the scope of this Agreement without the Discloser’s prior written consent or (b) disclose the Discloser’s Confidential Information to any person or entity, except to the Recipient’s employees, agents, contractors and service providers who (i) are bound by non-use and non-disclosure obligations at least as protective as those contained in this Agreement and (ii) have a need to know the Confidential Information for the Recipient to exercise its rights or perform its obligations under this Agreement. Notwithstanding the foregoing, the Recipient may disclose the Discloser’s Confidential Information to the limited extent any use or disclosure is required by Applicable Law or a valid and binding order of a governmental body (such as a subpoena or court order), provided that, to the extent permitted under Applicable Law, the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Recipient of its obligations under this Clause, the Discloser will be entitled to seek injunctive and other equitable relief to enforce such obligations.
11.1 Except as expressly provided in this Agreement, neither party makes any warranty or guarantee of any kind, whether express, implied, statutory, or otherwise, and each party specifically disclaims all warranties, whether implied, express, or statutory, including any implied warranty of title, merchantability, fitness for a particular purpose, or non-infringement, and all warranties arising from course of dealing, usage or trade practice, to the maximum extent permitted by applicable law.
11.2 Except as expressly provided in this agreement, all Services, support (if any) and any other material are provided by ViSenze on an “as is” and “as available” basis. ViSenze makes no representation or warranty, and has no support obligations or liability, with respect to any customer component. Without limiting the other provisions of this Clause 11, ViSenze makes no warranty of any kind that the Services, Ancillary Tools or any other material, or results of the use thereof, will: (a) meet Customer’s or any other person’s requirements; (b) operate without interruption; (c) achieve any intended result; (d) be error free or (e) be compatible, work with or continue to work with customer components. Any changes to Customer components (including their unavailability) or third-party terms during an order term do not affect Customer’s obligations under the applicable order or this Agreement
12 Term and Termination
12.1 The term of this Agreement will continue through the last Service Term to be in effect or upon expiration or earlier termination as described in Clause 3.1
12.2 The provisions set forth in the following Clauses, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: 6.4, 7.2, 8 through 14, and 16 through 25
The Customer agrees to fully and effectively indemnify, defend and hold harmless ViSenze, its related corporations, their officers, directors and employees (each an ‘Indemnified Party’ and, collectively, the ‘Indemnified Parties’) against any and all losses, damages, liabilities, claims, demands (including settlement, costs, charges and expenses and/or portions thereof), suffered or incurred by the Indemnified Parties:
13.1 arising directly or indirectly out of or in connection with the performance of the Customer’s obligations under this Agreement or any breach of this Agreement by the Customer’s employees, agents or sub-contractors
13.2 arising out of any third party claim in connection with the Customer’s use of the Services in any way not contemplated by this Agreement and/or
13.3 arising out of any third party claim in connection with the Customer using the ViSenze Underlying Systems in any way not contemplated by this Agreement.
14 Limitations of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS OTHERWISE PROVIDED IN THIS CLAUSE 14: (a) IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES OR THEIR EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS OR DIRECTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT; AND (b) IN NO EVENT SHALL VISENZE’S CUMULATIVE AND AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED FIFTY U.S. DOLLARS. THE EXCLUSIONS AND LIMITATIONS IN THIS CLAUSE (COLLECTIVELY, THE “EXCLUSIONS”) APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF THE NON-BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE EXCLUSIONS SHALL NOT APPLY TO CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER CLAUSE 13 OR BREACH OF CLAUSE 7. THE PROVISIONS OF THIS CLAUSE 14 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT.
Neither Party shall, except as otherwise required by Applicable Law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s marks or logos without the prior written consent of the other Party; provided, however, that ViSenze may (subject its obligations of non-attribution under Clause 6.4) include Customer’s name and logo in its lists of ViSenze customers, its public website and other promotional material.
Subject to change pursuant to this Clause: (a) ViSenze’s physical address for notices is that of its Singapore offices located at 67 Ayer Rajah Crescent #07-05 Singapore 139950, and its email address for notices – email@example.com and (b) Customer’s physical and email addresses for notices are those associated with its Shopify Store. Notices required or permitted to be given under this Agreement shall be in writing and shall be deemed to be sufficiently given: (i) one business day after being sent by overnight courier to the Party’s physical address; (ii) three business days after being sent by registered mail, return receipt requested, to the Party’s physical address; or (iii) one business day after being sent by email to the Party’s email address. Either Party may change its address(es) for notice by providing notice to the other in accordance with this Clause.
Customer may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without ViSenze’s prior written consent, and any purported assignment in violation of this Clause is void. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.
18 Independent Parties; No Third-Party Beneficiaries
The Parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one Party as an employee, agent, joint venture partner or servant of another. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
19 Force Majeure
ViSenze shall not be liable or responsible to the Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by acts of God; flood, fire or explosion; war, terrorism, invasion, riot or other civil unrest; embargoes or blockades in effect on or after the date of this Agreement; or national or regional emergency.
20 Governing Law and Dispute Resolution
20.1 This Agreement, the Services and any dispute arising out of, or in relation to, the use of the Services, shall be governed by, and construed in accordance with, the laws of Singapore and without giving effect to any conflicts of law principles that would result in the application of the laws of a jurisdiction other than Singapore.
20.2 The parties hereby submit to the exclusive jurisdiction of the Courts of Singapore.
20.3 If any dispute or difference arises between the parties under or in connection with this Agreement and/or the parties’ respective rights and obligations under this Agreement, the parties shall before taking any Court action attempt to bring about an amicable settlement through good faith negotiations. Such an attempt is considered to have failed only when a party, after reasonable attempts that continue for not less than 15 days, gives 15 days’ notice of such failure to the other party.
20.4 Each party must, to the extent possible, continue to perform its obligations under this Agreement even if there is a dispute.
20.5 This Clause does not affect either party’s right to seek urgent interlocutory and/or injunctive relief from the Courts of Singapore.
This Agreement and, as and if applicable, Supplemental Terms and any other additional terms and conditions as referenced in Clause 2, is the complete and exclusive statement of the agreement between the Parties and supersedes all proposals, questionnaires and other communications and agreements between the Parties (oral or written) relating to the subject matter of this Agreement. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Additionally, this Agreement supersedes any confidentiality, non-disclosure, evaluation or trial agreement previously entered into by the Parties with respect Customer’s or an Affiliate’s evaluation of the Services or otherwise with respect to the Services. Except as otherwise provided in Clause 23, this Agreement may be modified only by a written instrument duly executed by authorized representatives of the Parties. The failure of a Party to exercise or enforce any condition, term or provision of this Agreement will not operate as a waiver of such condition, term or provision. Any waiver by either Party of any condition, term or provision of this Agreement shall not be construed as a waiver of any other condition, term or provision. If any provision of this Agreement is held invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; the word “or” is not exclusive; and the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole.
Capitalized terms not otherwise defined in this Agreement shall have the respective meanings assigned to them in this Clause 22.
“Account Data” means information about Customer that Customer provides to ViSenze in connection with the creation or administration of its ViSenze account, such as first and last name, user name and email address of an Authorized User or Customer’s billing contact. Customer shall ensure that all Account Data is current and accurate at all times during the applicable Service Term, and shall in no event include Sensitive Personal Data in Account Data.
“Affiliate” means, with respect to a Party, a business entity that directly or indirectly controls, is controlled by or is under common control with, such Party, where “control” means the direct or indirect ownership of more than 50% of the voting securities of a business entity.
“API” means an application programming interface that ViSenze maintains and makes available to Customer in connection with the Services.
“Applicable Laws” means any and all governmental laws, rules, directives, regulations or orders that are applicable to a particular Party’s performance under this Agreement.
“Authorized User” means an individual employee, agent or contractor of Customer for whom subscriptions to Services have been acquired pursuant to the terms of this Agreement, and who has been supplied user credentials for the Services by Customer (or by ViSenze at Customer’s request).
“Feedback” means bug reports, suggestions or other feedback with respect to the Services provided by Customer to ViSenze, exclusive of any Customer Confidential Information therein.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Objectionable” includes being offensive, indecent, objectionable, defamatory, obscene, harassing, threatening or unlawful in any way.
“Party” means each of ViSenze and Customer.
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Process” means to perform an operation or set of operations on data, content or information, including to submit, transmit, post, transfer, disclose, collect, record, organize, structure, store, adapt or alter; “Processing” has a correlative meaning.
“Sensitive Personal Data” means the following categories of Personal Data: (a) the racial or ethnic origin of the data subject; (b) his political opinions; (c) his religious beliefs or other beliefs of a similar nature; (d) whether he is a member of a trade union; (e) his physical or mental health or condition; (f) his sexual life; (g) the commission or alleged commission by him of any offence; or (h) any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings.
“Service Term” means the period where this Agreement is in effect a one (1) year period from the Effective Date or through termination pursuant to Clause 3, whichever is the earlier.
“Services” means the Discovery Suite Retail AI platform that is made available by ViSenze online via the applicable login page and other web pages designated by ViSenze. ViSenze may make such changes to the Discovery Suite Retail AI platform as ViSenze deems appropriate from time to time.
“Shopify Store” means the Shopify store that is operated and owned by the Customer.
“Supplemental Terms” means additional terms that apply to certain Customer Data, Services, and/or customers.
“Support” means ViSenze’s online customer support for the Services. For additional support enquiries, please contact firstname.lastname@example.org
23. Modifications to this Agreement
ViSenze may modify this Agreement at any time by posting a revised version at https://www.visenze.com/legal-ds-shopify-agreement/ which modifications will become effective as of the first day of the calendar month following the month in which they were first posted. If Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose to stop using the Services and terminate this Agreement upon written notice to ViSenze.