Data Processing Addendum

Term and Termination

This Agreement will commence on the Effective Date and will remain in effect until terminated (the “Term”). Either party may terminate this Agreement at any time for convenience by giving the other party 30 days’ written notice of such termination. Vistasuite may also terminate this Agreement immediately if you breach this Agreement. If this Agreement is terminated for any reason:

(a) all licenses granted by either party to the other will terminate;

(b) you will immediately cease use of, and remove from your site, all Vistasuite materials and logos; and

(c) you will immediately cease to identify yourself or hold yourself out as a Program participant or member of the Vistasuite Partner Program.

Limitation on Liability

EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL YOUR OR VISTASUITE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED TEN THOUSAND DOLLARS ($10,000).

EXCEPT IN CONNECTION WITH A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

Miscellaneous

Assignment 

Neither party shall assign or transfer, by operation of law or otherwise, any rights or obligations under this Agreement without the prior written consent of the other party, except in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets not involving a direct competitor of the other party.

Severability

In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be illegal, invalid or unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.

Publicity

You grant Vistasuite the right to use your company name and logo as a reference for marketing or promotional purposes on Vistasuite’s website and in other public or private communications with existing or potential Vistasuite customers, subject to your standard trademark usage guidelines as provided to Vistasuite from time-to-time. If you intend to use Vistasuite’s name in a press release, you will need to be granted advance written permission.

Force Majeure

Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of such party, which may include denial-of-service attacks, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.

Relationship of the Parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

No Third-Party Beneficiaries

There are no third-party beneficiaries to this Agreement.

Notices

Except as otherwise set forth herein, all notices under this Agreement will be in writing addressed to the parties at the email address set forth in your application and will be deemed to have been duly given the first business day after sending by email. Updates to the terms of this Agreement will be posted to our Site and we may email you to inform you of any changes.

Governing Law

This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.

Venue; Waiver of Jury Trial; Fees

The state and federal courts located in DuPage County, Illinois shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

Entire Agreement

This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted.