Trial Terms of Use Agreement

By accessing and/or using the Services or indicating your acceptance of this Agreement, you are agreeing to be bound by the terms and conditions of and become a party to this Agreement. If you do not agree to all of the terms of this Agreement, you must not and may not access, download or use the Services.

This Agreement, which includes the Privacy Statement, is entered into by and between Visier, Inc., a Delaware corporation with its address at 548 Market Street, #62284, San Francisco, CA 94104-5401 USA (“Visier”) and the entity or person downloading and/or accessing the Services (“User“). If you are downloading and/or accessing the Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “User” reference your company. The “Effective Date” of this Agreement is the date of User’s initial access to the Services via download or other online provisioning. This Agreement governs User’s access to and use of the Services. All updates, modifications, and enhancements to the Services and all Services subsequently downloaded or purchased by User are subject to the terms and conditions of this Agreement. Capitalized terms not otherwise defined herein have the meanings given to them in Section 14 (Definitions).

1. Eligibility

In order to use the Services, you must agree to this Agreement and represent and warrant that you are: (a) at least eighteen (18) years old and able to enter into contracts; and (b) your registration and use of the Services complies with any and all applicable laws and regulations.

2. Services

1. Use and Access Requirements. Subject to the terms of this Agreement, Visier shall make the Services and Documentation available to User during the Term for the internal business purposes of User. User acknowledges that a high-speed Internet connection and a commonly available, up-to-date operating system and web browser are required for access to the Services. User is responsible to procure and maintain the networks, software and equipment necessary to connect User’s network to the Internet and to access the Services. User’s use of the Services cannot exceed any of the Services parameters set forth in this Agreement or as otherwise communicated by Visier.

2. API Support. Visier may permit User to connect its Source System to the Services via an API mechanism that User configures. User acknowledges that Source Systems and their API mechanisms are provided and maintained by third parties. Accordingly, Visier is not responsible for and disclaims any liability for the reliability or performance of the APIs and User’s Source Systems. In the event that a Source System vendor removes, disables, or deprecates an API, User acknowledges that it will no longer have the capability to load the Data File from such Source System into the Services through the API mechanism, which may reduce or eliminate User’s ability to utilize the Services. User is limited to 100 API calls per minute and 250 API calls per hour.

3. User Responsibilities. User is responsible for: (i) maintaining the confidentiality of its User ID and associated password(s); (ii) any and all activities that occur while operating under such User ID; and (iii) compliance with the terms of this Agreement and the Acceptable Use Policy. User agrees to immediately notify Visier of any unauthorized use of a User ID or violation of the Acceptable Use Policy of which User becomes aware.

4. Data File Upload. To use the Services, the User must first upload the Data File to the Services. The Data File will be provided to User through a hosted data file download and User must upload the Data File exactly as provided by Visier, with no modifications and with no other data, information or files. For clarity, User is solely responsible for anything it uploads to the Services and should it upload anything other than the Data File (“Other Data”), Visier provides no protections or safeguards for any Other Data uploaded other than as generally set out in this Agreement.

5. Data File License. Visier grants to User a license to use the Data File solely for the purposes identified in the Documentation and/or this Agreement, and not for any commercial purpose, on a revocable, non-exclusive, non-transferable, non-sublicenseable, royalty-free, worldwide basis.

6. Modification and Feature Deprecation. Visier maintains a deprecation list of individual features and functionality scheduled for end-of-life on its website. Visier reserves the right to discontinue individual features and functionality without providing a similar replacement after an end-of-life period of not less than three (3) years by posting such individual feature to the deprecation list from time to time. In addition, Visier may modify the Services from time to time in its sole discretion in order to improve the User experience, including, without limitation, adding new functionality, correcting errors, or improving performance.

7. Data Privacy. Through the ordinary interaction between User and Visier, User could provide to Visier limited Personal Data (e.g., email signatures, business contact information, and similar). Such Personal Data is User’s Confidential Information and may be processed by Visier in connection with its delivery of the Services. Visier has implemented reasonable and appropriate physical, technical, and organizational safeguards to protect such information, including implementation of measures to mitigate risk to, maintain confidentiality of, and to prevent accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, such information, taking into consideration the likelihood and severity of the risk to the rights and freedoms of the affected consumers/data subjects, as set out in Schedule A to this Agreement.

8. Data Hosting. All data hosting associated with the provision of the Services, including without limitation the storage of Personal Data, will be provided from data centers selected by Visier.

3. Restrictions

User may not, and may not permit any person or entity to: (i) resell, transfer, make available, or allow the use of the Services, or any part thereof, directly or indirectly, to or by any other person without the prior written approval of Visier; (ii) copy, reverse engineer or otherwise attempt to obtain the source code for any component of the software used to provide the Services, except and only to the extent these restrictions are expressly prohibited by applicable statutory law; (iii) alter, modify or adapt any component of the Services or any software used to provide the Services, including without limitation, translating or creating derivative works; (iv) introduce into or transmit through the Services any virus, worm, trap door, back door, or other harmful or malicious code, files, scripts, agents, or programs; (v) transmit or store infringing material in the Services; (vi) assign a User ID or make the Services available to any person who is less than 13 years old; (vii) use or permit, except with the express prior authorization of Visier and under supervision by Visier, the use of any security testing tools in order to probe, scan, or attempt to penetrate or ascertain the security of the Services; (viii) make any component of the Services available by loan, rental, service bureau, external time sharing or similar arrangement, or monetize, use, distribute or share the Services for any other commercial purposes; (ix) access, attempt to access, or use the Services other than through a validly assigned User ID; (x) share a User ID with anyone; (xi) export or re-export the Services, Documentation, or any component or direct product thereof, except in compliance with all applicable export laws, restrictions, and regulations; (xii) remove, overprint, deface, obfuscate, or change any notice of confidentiality, copyright, trademark, logo, legend, or other notices of ownership or other rights from the Services or Documentation; (xiii) upload anything other than the Data File to the Services; or (xiv) exceed the quantities and frequency of API calls set out herein.

4. Fees, Term, Termination and Suspension

1. Free Services. Subject to this Agreement, the Services and Documentation are provided to User free of charge. Visier reserves the right to modify, suspend or terminate the Services, including without limitation modification of the terms of this Agreement applicable to the Services, in its sole and absolute discretion at any time without notice.

2. Agreement Term and Termination. This Agreement shall commence on the Effective Date and continue for thirty (30) days. Thereafter, the User can renew for two (2) additional thirty (30) day periods (collectively, the Term).

3. Termination by User. User may terminate this Agreement by sending written notification to free-trial@visier.com.

4. Termination for Cause. In the event that a party breaches any material provision of this Agreement and such breach is not cured within thirty (30) days after receiving written notice of such breach from the other party, such other party shall have the right to either terminate this Agreement. This Agreement may also be terminated upon written notice by a party if the other party: (i) terminates or suspends its business activities; (ii) liquidates all or a substantial portion of its assets for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority to effect such liquidation of assets; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes to effect such liquidation of assets. In the event User terminates this Agreement for cause pursuant to this Section, if applicable, User shall receive a pro-rata refund of the pre-paid fees corresponding to the terminated portion of the affected term. In the event Visier terminates this Agreement for cause pursuant to this Section, the payment obligation for all fees and charges corresponding to the terminated portion of the affected term shall accelerate and become due and payable immediately, if applicable.

5. Suspension. Visier may suspend User’s access to and use of the Services if Visier reasonably believes User is in breach of any obligation or restriction under this Agreement. Services will resume within a reasonable time after the breach or delinquency has been corrected. Visier shall not be liable to User or other third party for any suspension of the Services pursuant to this Section.

5. Confidentiality and Security

1. Nondisclosure and Permitted Use. Each party agrees that Confidential Information shall be maintained in confidence and not disclosed, used or duplicated, except as permitted in this Agreement. Recipient shall not copy or disclose Discloser’s Confidential Information except to its Representatives who need to know the Confidential Information in order to perform under this Agreement. Recipient and its Representatives may use Confidential Information only in connection with performance under this Agreement. Recipient will protect Discloser’s Confidential Information with the same, but not less than reasonable, standard of care it uses to protect its own Confidential Information. Each party shall promptly inform the other party of any unauthorized disclosure of, or access to, the other party’s Confidential Information.

2. Deletion and Retention. Recipient will cease use of and return or destroy all copies or extracts of Discloser’s Confidential Information within thirty (30) days of the expiration or termination of this Agreement, except that Recipient may retain portions of Confidential Information in accordance with its procedures implemented to comply with applicable law or regulation, litigation hold or audit logging requirements, provided that such Confidential Information remains subject to the terms of this Agreement and may not be used except for such compliance purposes. At the request of Discloser, Recipient will provide a certificate, signed by its authorized representative, acknowledging that Discloser’s Confidential Information has been returned or destroyed in accordance with these terms. With respect to User’s Personal Data, Visier will delete and/or destroy, using methods consistent with NIST SP800-88r1, the Personal Data from its systems and storage media and any offsite storage and third-party facilities under its control within thirty (30) days.

3. Exclusions. The foregoing limitations on the disclosure and use of Confidential Information will not apply: (a) to any Other Data, or (b) if the Confidential Information: (i) was already known to Recipient, other than under an obligation of confidentiality, at the time of disclosure by Discloser; (ii) was or becomes generally available to the public or otherwise part of the public domain, through no fault of Recipient or its Representatives; (iii) was lawfully received from a third party who rightfully acquired it and did not obtain or disclose it in violation of any confidentiality agreement or obligation; or (iv) was independently developed by Recipient without the use of, or reference to, the Confidential Information of Discloser.

4. Relief. A party’s breach of its confidentiality obligations set out in this Section may cause the aggrieved party to suffer irreparable harm in an amount not easily ascertained. The parties agree that, upon any actual or threatened breach of a party’s confidentiality obligations hereunder, the aggrieved party will be entitled to seek appropriate equitable relief in addition to whatever remedies it might have at law.

5. Lawful Disclosure. If Recipient is required by law to disclose Discloser’s Confidential Information, Recipient may do so, but will first, if legally permissible, provide Discloser with prompt notice of such pending disclosure so that Discloser may seek to contest or limit such disclosure and Recipient will provide reasonable assistance to Discloser at Discloser’s expense.

6. Intellectual Property Rights

1. No Implied Grant. Except as expressly set forth herein, this Agreement does not grant either party any rights, implied or otherwise, to the other party’s content or the other party’s intellectual property.

2. Intellectual Property Ownership. As between the parties, User owns all Intellectual Property Rights in and to the Personal Data. As between the parties, Visier owns all Intellectual Property Rights in and to the Services, Data File and Documentation.

3. Feedback. If User provides Feedback to Visier, User hereby grants to Visier a royalty-free, worldwide, transferable, no-charge, sub-licensable, irrevocable, and perpetual license to use, disclose, reproduce, license, distribute and exploit the Feedback entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

7. Indemnification

1. User’s Indemnity. User, at its expense, will defend and indemnify Visier from and against all costs, liabilities and expenses (including reasonable attorney fees) arising from a Claim against Visier and/or its Affiliates: (a) arising from User’s use of and access to the Services; (b) arising from User’s violation of any term of this Agreement, including the upload of Other Data; or (c) alleging that Personal Data or Other Data infringes or misappropriates a patent, trademark, trade secret or copyright or that User has violated a law or regulation applicable to the collection, transfer or use of the Personal Data or Other Data, including, but not limited to, damages assessed, awarded, and/or fined by a court of competent jurisdiction or agreed to in settlement.

2. Indemnification Procedure. Visier will give User prompt written notice of a claim, provided, however, that failure of Visier to give prompt notice shall not relieve User from its obligations under this Agreement unless User’s ability to defend or the defense is materially prejudiced by such failure. Upon receipt of notice of a claim from Visier, User shall, at its sole cost and expense, assume the defense thereof by representatives chosen by it. Visier shall be entitled to participate in the defense of such claim and to employ counsel at its own expense to assist in the handling of such claim. User shall have the right to assert any defenses, causes of action or counterclaims arising from the subject of the claim available to Visier and shall also have the right to negotiate a settlement of the claim, subject only to Visier’s prior written consent to the extent such settlement does not fully release Visier. Visier shall provide User with reasonable assistance, at Visier’s expense.

8. Warranties

Each of Visier and User represents and warrants to the other that: (i) it has the full power and authority to enter into and perform this Agreement, to grant the rights granted by it under this Agreement, and to perform its obligations under this Agreement; and (ii) it will comply with all laws applicable to the performance of its obligations hereunder.

9. Limitations of Liability

1. Consequential Damages Waiver. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL VISIER BE LIABLE TO THE USER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS OR LOST REVENUES, LOST GOODWILL, LOSS OF USE, LOST OR INACCURATE DATA, OR INTERRUPTION OF BUSINESS, WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

2. Liability Cap. VISIER’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT EXCEED $100.

3. Failure of Essential Purpose. The waivers and limitations in this Section 9 will survive and apply notwithstanding any finding of a failure of the essential purpose of any limited remedy.

10. Disclaimers

1. Use. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, USER ACKNOWLEDGES AND AGREES THAT THE SERVICES, DATA FILE AND DOCUMENTATION ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, THE RISK OF ANY USE USER MAKES OF THE SERVICES, DATA FILE AND DOCUMENTATION IS USER’S OWN, AND NEITHER VISIER, NOR ITS AFFILIATES, EMPLOYEES, AGENTS, OR LICENSORS MAKE, AND VISIER, ITS AFFILIATES, EMPLOYEES, AGENTS, AND LICENSORS HEREBY SPECIFICALLY DISCLAIM, ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, TIMELINESS, QUALITY, ACCURACY OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. USER’S DECISIONS BASED ON THE SERVICES ARE ENTIRELY USER’S OWN AND VISIER ASSUMES NO RESPONSIBILITY FOR THE CONSEQUENCES RESULTING FROM USER’S USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO, CONSEQUENCES BASED ON ERRORS OR OMISSIONS, THE ACCURACY OR REASONABLENESS OF SCIENTIFIC ASSUMPTIONS, STUDIES, OR CONCLUSIONS, OR THE PRESENCE OF BIAS.

2. Third-Party Systems. VISIER ASSUMES NO RESPONSIBILITY FOR: (I) THE RELIABILITY OR PERFORMANCE OF ANY SOURCE SYSTEM; (II) THE PROVISION BY USER OF VALID, UP-TO-DATE, API KEYS FOR SOURCE SYSTEMS; (III) USER’S CONFIGURATION OF VISIER’S ACCESS TO SOURCE SYSTEMS; (IV) ANY FEES ASSOCIATED WITH ENABLING OR SUPPORTING API ACCESS TO SOURCE SYSTEMS CHARGED BY THE PROVIDERS AND/OR LICENSORS OF THE SOURCE SYSTEMS AND ANY RELATED COSTS INCURRED BY USER, IF APPLICABLE; OR (V) ANY COMPUTER NETWORKS, CONNECTIONS, OR OTHER SYSTEMS NOT OWNED OR OPERATED BY VISIER. IF THE SERVICES INCLUDE OR PERMIT THE INCLUSION OF THIRD-PARTY WEBSITES, VISIER ASSUMES NO RESPONSIBILITY FOR SUCH WEBSITES AND ANY USE MADE OF SUCH WEBSITES ARE AT USER’S OWN RISK, SUBJECT TO THE TERMS OF SUCH THIRD-PARTY WEBSITE.

3. Specific Compliance. EXCEPT FOR COMPLIANCE WITH DATA PROTECTION LAWS APPLICABLE TO VISIER’S PROCESSING UNDER THIS AGREEMENT, THE SERVICES ARE NOT DESIGNED, RATED, VALIDATED, AUDITED, APPROVED OR OTHERWISE INTENDED TO COMPLY WITH INDUSTRY-SPECIFIC LAWS, REGULATIONS, OR SECURITY STANDARDS AND VISIER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO COMPLIANCE WITH INDUSTRY-SPECIFIC LAWS, REGULATIONS, OR SECURITY STANDARDS IN THE PROCESSING OF ANY DATA THAT IS SUBJECT TO SUCH LAWS, REGULATIONS, OR SECURITY STANDARDS. USER IS SOLELY RESPONSIBLE FOR ENSURING THAT OTHER DATA IS NOT PROVIDED TO VISIER FOR PROCESSING BUT IF IT DOES, FOR ENSURING THAT SUCH OTHER DATA IS NOT SUBJECT TO INDUSTRY-SPECIFIC LAWS, REGULATIONS, OR SECURITY STANDARDS IN ADVANCE OF TRANSFER TO VISIER.

4. High-Risk Applications. THE SERVICES ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HIGH-RISK APPLICATION INCLUDING BUT NOT LIMITED TO: (I) THE DESIGN, CONSTRUCTION, OPERATION OR MAINTENANCE OF ANY NUCLEAR FACILITY; (II) NAVIGATING OR OPERATING AIRCRAFT; (III) ANY LIFE-SAVING, LIFE-SUPPORT OR LIFE-CRITICAL MEDICAL EQUIPMENT; OR (IV) ANY OTHER HIGH RISK OR LIFE-CRITICAL SITUATION. VISIER EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY RELATED TO THE USE OF THE SERVICES IN ANY HIGH-RISK APPLICATION WHERE THE FAILURE OF THE SERVICES COULD CAUSE A LIFE-THREATENING SITUATION, INCLUDING BUT NOT LIMITED TO, MEDICAL, NUCLEAR, AVIATION, NAVIGATION, OR MILITARY APPLICATIONS. USER IS SOLELY RESPONSIBLE FOR DETERMINING WHICH OF ITS DATA IS PROVIDED TO VISIER TO PROCESS.

11. General Provisions

1. Entire Agreement. This Agreement supersedes all prior oral or written negotiations and discussions of the parties and constitutes the entire agreement between the parties with respect to the subject matter hereof. No modification, amendment, supplement, or waiver of any of the provisions hereof shall be binding upon any party hereto unless made in writing and signed by a duly authorized representative of each party hereto. This Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision. Notwithstanding any language to the contrary therein nor any requirement of affirmative acceptance, no term, condition or provision of any purchase order, invoice, registration portal, ‘click-through’ form, or other administrative document or procedure issued by User or any third party to Visier in connection to this Agreement will be deemed to affect, modify, alter or expand the rights, duties or obligations of the parties hereunder, or otherwise modify this Agreement, regardless of any failure of Visier to refute or object to such term, condition or provision.

2. Binding Nature, Third Parties, Independent Contractors. This Agreement is binding on the parties hereto and their respective successors and permitted assigns, is solely for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or remedies on any other person or entity. The parties agree that there are no third-party beneficiaries to this Agreement. The relationship established between the parties by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either party the power to direct and/or control the day-to-day activities of the other; (ii) constitute the parties as partners, joint venture partners, co-owners or otherwise as participants in a joint or common undertaking; or (iii) allow a party to create or assume any obligation on behalf of the other party for any purpose whatsoever, except as contemplated by this Agreement.

3. Assignment. A party may not, without the prior written consent of the other party, assign, make assignable, or otherwise transfer this Agreement or any portion thereof, nor any of its rights or obligations thereunder, by operation of law or otherwise, and any attempt to do so shall be null and void. Notwithstanding the foregoing, a party may assign this Agreement to its successor-in-interest without obtaining the other party’s consent in connection with a merger, reorganization or sale of substantially all of the assets of such party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.

4. Governing Law and Forum. The validity, interpretation and enforceability of this Agreement shall be governed by the laws of the State of California, USA without regard to its conflict of laws principles. The parties hereby submit to the nonexclusive, personal jurisdiction of the state and federal courts located in the County of Santa Clara, California.

5. UCITA and Severability. The application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA) are expressly excluded. If any provision hereof shall for any reason be declared to be void or illegal, the enforceability of this Agreement or any other provision hereof shall not be affected. In addition, the parties agree that such void or illegal provision shall be construed in a manner designed to effectuate its purpose to the fullest extent enforceable under applicable law.

6. Headings. The headings in this Agreement are for reference purposes only and shall not affect the meaning or construction of the terms and conditions.

7. U.S. Federal Department. If User is a U.S. federal government department or agency or contracting on behalf of such department or agency, Visier provides the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in the Agreement and any use, modification, reproduction, license to, display, or disclosure of the Services by a U.S. federal government department or agency shall be governed solely by the terms and conditions of the Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). The Services and Documentation are deemed to be ‘commercial computer software’ and ‘commercial computer software documentation’ respectively. If a government agency has a need for rights not conveyed under the Agreement, it must negotiate with Visier to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

8. Notices. Except as otherwise specified in the Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given when verified by automated receipt or electronic logs if sent by email, provided e-mail shall not be sufficient for notice of breach, termination or indemnifiable claim. Notices to User shall be addressed to the contact provided to Visier on Visier’s Website and Visier shall be entitled to rely on that e-mail address until User gives Visier notice that such e-mail address is no longer valid. Notices to Visier shall be addressed by e-mail to free-trial@visier.com.

9. Cumulative Remedies, Litigation Costs. Except where expressly stated otherwise, all remedies are cumulative and in addition to and not in lieu of any other remedy the party may have at law or in equity. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretations, its performance, or the like, the prevailing party shall be awarded reasonable attorneys’ fees and/or costs.

10. Force Majeure. Neither party shall be responsible for any delay or failure in performance resulting from acts beyond its reasonable control to the extent that such acts could not have been prevented or avoided by the exercise of reasonable diligence by the affected party, including, without limitation, act of God, act of war or terrorism, riot, epidemic, fire, flood, or act of government.

11. No Waiver. No failure or delay on the part of any party in exercising any right hereunder, irrespective of the length of time for which such failure or delay shall continue, will operate as a waiver of, or impair, any such right. No single or partial exercise of any right hereunder shall preclude any other or further exercise thereof or the exercise of any other right. No waiver of any right hereunder will be effective unless given in writing.

12. Survival. Notwithstanding any expiration or termination of this Agreement, Sections 3, 4 through 13 (inclusive) of this Agreement shall survive such termination or expiration and remain in full force and effect.

12. Definitions

“Acceptable Use Policy” means the Visier Acceptable Use Policy available at Visier’s Website, accessible as of the Effective Date at https://www.visier.com/acceptable-use-policy.

“Affiliate” means, with respect to a party, an entity under its direct or indirect Control or under common Control; but in any such case, such entity shall be deemed to be an Affiliate only so long as such Control exists.

“API” means application programming interface or such similarly credentialled automated data connection workflow configured by User.

"API Key" means the credentials, generally provided through a digital key, that provides authentication to a Source System.

“Claim” means any claim, suit, or action filed by a third party.

“Confidential Information” means: (a) any business or technical information of Visier or its Affiliates, whether provided in written, electronic, oral or any other form, that: (i) is clearly marked or identified as “confidential” or “proprietary” at the time of disclosure; (ii) User knows or should reasonably understand is the confidential or proprietary information of Visier or its Affiliates; or (iii) belongs to one of the following categories: Personal Data, financial data, User information, technical schematics, technical data, technical algorithms, product pricing, product roadmaps, product documentation, product software in source code, object code, or any other form, information about pending mergers or acquisitions, security procedures, and the terms of this Agreement; and (b) User’s Personal Data.

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a legally recognizable entity, whether through the ownership of more than fifty percent (50%) of the voting shares, by contract, or otherwise.

“Data File” means the electronic data provided by Visier, downloaded by User and uploaded to the Services by User for use with the Services.

“Data Protection Law” means that legislation protecting the right to privacy of natural persons (including consumers and households) that is applicable to the Processing of Personal Data under this Agreement, but excluding industry-specific laws, regulations or security standards.

“Discloser” means the party disclosing, or on whose behalf its Representatives are disclosing, Confidential Information.

“Documentation” means administrative and user manuals for the Services published by Visier and made available to User, which may be updated from time to time by Visier, but excluding any sales and marketing materials and user forums.

“Feedback” means all suggestions, recommendations, enhancement requests and other feedback related to the design, function, or operation of Visier’s products and/or services.

“Intellectual Property Rights” means all current and future worldwide rights under patent law, copyright law, trade secret law, trademark law, moral rights law, and all similar rights.

“Personal Data” means any information that is subject to applicable Data Protection Laws and relates to an identified or identifiable natural person (data subject, consumer or household); 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.

"Privacy Statement” means the Visier privacy statement, located at: https://www.visier.com/privacy/

“Process” means (and its variants “Processes” and “Processing” similarly refer to) any operation or set of operations performed on Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation, alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Recipient” means the party receiving, or on whose behalf its Representatives are receiving, Confidential Information.

“Representatives” means, with respect to a party, the directors, officers, employees, subcontractors, and agents (including, without limitation, attorneys, accountants, and auditors) of the party and its Affiliates.

“Services” means those software-as-a-service services which the User accesses and/or uses from Visier’s Website.

“Source System” means a third-party system configured by User to transfer data to Visier for use with the Services.

“User ID” means a unique user login identifier for access to the Services.

“Visier’s Website” means https://www.visier.com with such included navigation as may be required in context.

SCHEDULE A
SECURITY

1. Organizational Security

1. Visier has implemented and will maintain security and privacy programs that follow the National Institute of Standards and Technology (NIST) Cybersecurity framework and International Standards Organization (ISO) 27001.

2. Visier has implemented third party risk management programs that assess cloud providers to ensure adequate processes are in place for any planned outsourced services.

3. Visier will retain an independent third-party auditor to perform a SOC2 Type II (or equivalent) audit at least annually covering the Trust Service Principles of security, confidentiality and availability.

2. Network and Endpoint Security

1. Visier has implemented network security access controls to protect against unauthorized access through both user accounts and devices such as segmentation of production and non-production environments, configuration of firewalls and other network boundary devices to restrict and or re-direct traffic.

2. Visier has deployed measures on intrusion prevention and detection systems (IPS/IDS) to identify and detect any indicators of attack.

3. Visier has implemented anti-virus/malware protection for its end points (such as laptops, servers, etc.) with automated signature updates, identification, and quarantine of any endpoint malware.

4. Visier has implemented a patch management policy to ensure critical patches are deployed to endpoints in line with its risk assessment and change management practices.

5. Visier has implemented content filtering mechanisms on email to detect any virus/malware.

6. Visier has implemented processes for retention of event logs identified through its IPS/IDS or other monitoring tools. These logs will be investigated.

3. System Maintenance

Visier has implemented and will maintain documented change control procedures for:

1. planning, documenting, testing and approving modifications to the environments (e.g., application, operating system, and hardware level changes) used to provide the Services to protect the confidentiality, availability, and security of information systems;

2. granting, monitoring, and removing emergency access; and

3. introducing unscheduled changes to the Services environment.