Last Updated on April 2, 2021
This Visitor Agreement is entered into on the Effective Date between Venduur and Visitor/Guest.
All terms in bold and italicized text are defined in Article VIII below.
Venduur offers a subscription-based Service that enables Visitors/Guests to direct Content to the applicable Hosts/Facilities who have executed Host Agreements with Venduur. The Services are enabled through the use of Technology offered by Venduur.
In consideration of the mutual promises set forth herein and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the Parties hereby agree as follows:
TERMS AND CONDITIONS OF THE VISITOR AGREEMENT
ARTICLE I: ACCESS TO SERVICES AND TECHNOLOGY
1.01 Services. Venduur shall provide Visitor/Guest with certain specified Services pursuant to this Visitor Agreement.
A. Ability to direct Content to Hosts/Facilities. Visitor/Guest is hereby granted the following rights to access the Technology subject to the terms and conditions of this Visitor Agreement: (1) upload Content; and (2) selectively direct Content to a Host/Facility who has executed a Host Agreement with Venduur.
B. Support Services. Venduur shall provide Visitor/Guest and its Users with online user support.
C. Additional Services. Pursuant to the terms and conditions of this Agreement, and the payment of the applicable Fee, Venduur may be engaged by Visitor/Guest to provide certain activities relating to interfacing with the Technology and the creation of Content.
1.02 Technology. Subject to the payment of all applicable Fees and the full compliance of Visitor/Guest with the terms and conditions of this Agreement, Visitor/Guest and its Users shall have the right to access the Technology.
ARTICLE II: FEES AND PAYMENTS
2.01 Fees. Fees shall be paid either by Visitor/Guest’s Personnel or directly by Visitor/Guest.
A. Subscription Fee. This Fee of $500 paid on an annual basis in advance of utilizing the Services and Technology for the upcoming year.
B. Additional Fees. Visitor/Guest can retain Venduur on an ad hoc basis to provide assistance in the creation and uploading of Content or in the implementation of technology to utilize the Technology by Venduur.
A. Payments. Payments of all Fees shall be made through the Website.
B. Invoices. Invoices will be generated by Venduur and transmitted electronically to Visitor/Guest’s Users in accordance with the Contact Information. Monthly invoices will be generated in advance for the annual period of the applicable Services are to be provided.
C. Timing of Payments.
1. Subscription Fees. All subscription Fees shall be paid prior the annual period for the Services.
2. Other Fees. Fees for additional Services are payable within twenty (20) days after invoicing.
ARTICLE III: LICENSE; IP RIGHTS; AND CONFIDENTIALITY
3.01 License Grant. Venduur hereby grants to Visitor/Guest and its Personnel a license to utilize the Technology to receive the Services. All Personnel utilizing the Technology to access the Services shall comply with all of the terms and conditions of this Agreement.
3.02 Retention of IP Rights.
A. Technology. All IP Rights in the Technology shall be retained by Venduur and/or its suppliers. No IP Rights are transferred to Visitor/Guest or its Personnel pursuant to this Agreement except the usage rights specifically set forth in this Visitor Agreement.
B. Content. Visitor/Guest hereby grants a Venduur a license to store Content using the Technology so that it can be accessed by Hosts/Facilities as directed by Visitor/Guest. Visitor/Guest acknowledges that Content can include PHI.
C. Data that is not Content and not PHI. All IP Rights to Data stored on the Technology that is not Content and not PHI is retained by Venduur and its suppliers.
3.03 Improvements to the Technology. Title to all IP Rights in the Technology shall be retained by Venduur and/or its suppliers, even if such IP Rights result from suggested improvements originating from Visitor/Guest or its Personnel.
3.04 Duty of Cooperation. The Parties shall cooperate with each other in a commercially reasonable manner to effectuate the assignment of IP Rights such that title to the particular IP Right is owned by the Party entitled to ownership of the IP Right. This cooperation includes the execution of assignments of ownership as well as cooperation in the filing of patent or other applications relating to IP Rights. The Party requesting the cooperation of the other Party is responsible for all out of pocket expenses pertaining to the sough after cooperation.
3.05 Confidentiality. The Receiving Party shall preserve the confidential nature of the Confidential Information disclosed to it by the Disclosing Party pursuant to this Visitor Agreement.
A. Restrictions/Obligations with regards to Confidential Information.
B. Injunctive Relief. The Receiving Party understands and agrees that, because of the unique nature of the Confidential Information, the Disclosing Party may suffer irreparable harm in the event that the Receiving Party fails to comply with any of its obligations under this Visitor Agreement, and that monetary damages may be inadequate to compensate the Disclosing Party for such breach. Accordingly, the Receiving Party agrees that the Disclosing Party shall, in addition to any other remedy available to it at law or in equity, be entitled to injunctive relief to enforce the terms of this Visitor Agreement.
C. Disputes about “Confidentiality”. The Party disputing whether or not something is Confidential Information pursuant to this Visitor Agreement has the burden of proving such a conclusion with “clear and convincing” evidence in the litigation of such a dispute.
Article IV: TERM AND TERMINATION
4.01 Term of Visitor Agreement. This Visitor Agreement shall become effective on the Effective Date and continue until: (A) it is terminated pursuant to Section 4.02 or Section 4.03 below; or (B) until it expires one (1) year after the last renewal date without be renewed by Visitor/Guest.
4.02 Termination for Convenience
A. Termination for Convenience by Visitor/Guest. Visitor/Guest may terminate this Visitor Agreement for its convenience on the first day of any month so long as written notice is provided by Visitor/Guest to Venduur at least five (5) days in advance of the termination but no refunds will be provided by Venduur to Visitor/Guest.
B. Termination for Convenience by Venduur. Venduur may terminate this Visitor Agreement for convenience upon providing sixty (60) days prior written notice to Visitor/Guest.
4.03 Termination for Breach. In case of breach of this Visitor Agreement by a breaching Party, the non-breaching Party may immediately send the breaching Party a “Notice of Breach”. If the breach is not cured within a ten (10) day cured period, the non-breaching Party may terminate this Visitor Agreement upon sending a “Notice of Termination”.
4.04 Survival. All provisions in this Visitor Agreement survive termination of the Visitor Agreement except for Article I and Section 3.01.
ARTICLE V: WARRANTIES
5.01 Warranties of Venduur. Venduur warrants the following:
A. Venduur will comply with the requirements set forth in this Agreement.
B. Venduur will conduct itself in an honest, good faith, and commercially reasonable manner.
C. Services shall be performed in a workman-like, professional, and timely manner.
D. The Technology shall perform in a manner that is materially consistent with the Documentation.
E. Venduur has no know knowledge of any third-party IP Rights that would be infringed or misappropriated by the proper use of the Technology or Services.
5.02 Warranties of Visitor/Guest and its Users. Visitor/Guest and its Personnel warrant the following:
A. Visitor/Guest and its Users will comply with the requirements set forth in the Agreement.
B. Visitor/Guest and its Users will conduct themselves in an honest, good faith, and commercially reasonable manner.
C. Visitor/Guest and its Users will utilize the Services and access the Technology in a manner that is consistent with the Documentation.
D. Neither Visitor/Guest nor its Users shall attempt to introduce malware into the Technology or to otherwise impede or damage the Software or the Technology.
E. Visitor/Guest and its Users shall comply with all Laws, including HIPPA.
F. Visitor/Guest will not use the Technology or its operations to enable unauthorized personnel to access PHI.
H. Visitor/Guest and its Personnel shall misuse the Technology in a manner that is contrary to the Documentation.
5.03 Acknowledgment of Responsibility for Security Breaches and Misuse. NOTHING IN THIS AGREEMENT MAKES VENDUUR OR HOSTS/FACILITIES RESPONSIBLE FOR THE MISUSE OF CONTENT (SUCH AS PHI) OR ANY OTHER FORM OF DATA THAT RESULTS FROM: (A) SECURITY BREACHES OR MALWARE ON A DEVICE USED BY VISITOR/GUEST OR USERS AUTHORIZED BY VISITOR/GUEST; OR (B) THE ACTIONS OF SOMEONE LOGGING IN WITH THE CORRECT USER ID AND PASSWORD TO THE ACCESS THE TECHNOLOGY AS IF THEY WERE THE VISITOR/GUEST. VISITOR/GUEST is responsible for the actions and omissions of Visitor’s/Guest’s’ Users with respect to the interactions between those Users and the Technology.
ARTICLE VI: WARRANTY DISCLAIMERS AND DAMAGES EXCLUSIONS
6.01 “AS IS” and “AS AVAILABLE”. EXCEPT FOR EXPRESS WARRANTIES (IF ANY) PROVIDED ELSEWHERE IN THE AGREEMENT), THE SERVICES, TECHNOLOGY AND DATA ARE ALL MADE AVAILABLE TO LICENSEE BY VENDUUR AND ITS SUPPLIERS ON AN “AS IS” AND “AS AVAILABLE” BASIS. UNLESS OTHERWISE SPECIFIED IN WRITING. VENDUUR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, TECHNOLOGY, OR DATA. LICENSEE EXPRESSLY AGREES THAT USE OF THE SERVICES, TECHNOLOGY, OR DATA IS AT THE SOLE RISK OF LICENSEE. VENDUUR IS NOT RESPONSIBLE FOR ANY HUMAN ERRORS IN THE INTERPRETATION OF HOST/FACILITY REQUIREMENTS OR IN THE INTERPRETATION OF ANY DOCUMENTS UPLOADED BY A VISITOR/GUEST.
6.02 DISCLAIMER OF WARRANTIES. UNLESS OTHERWISE SPECIFIED ELSEWHERE IN THIS AGREEMENT, VENDUUR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, TECHNOLOGY, OR DATA. LICENSEE EXPRESSLY AGREES THAT USE OF THE SERVICES, TECHNOLOGY, OR DATA IS AT THE SOLE RISK OF LICENSEE. TO THE FULL EXTENT PERMISSIBLE BY LAW, VENDUUR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VENDUUR DOES NOT WARRANT THAT THE SERVICES, TECHNOLOGY OR DATA ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULL EXTENT PERMISSIBLE BY LAW, VENDUUR WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY SERVICES, TECHNOLOGY AND DATA UNLESS OTHERWISE SPECIFIED IN WRITING. VENDUUR IS NOT RESPONSIBLE FOR ANY HUMAN ERRORS IN THE INTERPRETATION OF HOST/FACILITY REQUIREMENTS OR IN THE INTERPRETATION OF ANY DOCUMENTS UPLOADED BY A VISITOR/GUEST.
6.03 Exclusive Remedy. To the extent that the Services and/or Technology breach any warranty, the exclusive remedy of Licensee shall be the repair and/or replacement of the Services and/or Technology. To the extent that this exclusive remedy is deemed to have failed of its essential purpose, Licensee’s recovery shall be limited to terminating use of the Services and/or Technology. If a Licensee is dissatisfied with the Technology, the Licensee can and should terminate the Agreement and cease use of the Technology.
6.04 Damages Exclusions. Except for the indemnification obligations set forth below and the payment of properly payable Fees, neither Party shall be liable to the other party for lost profits, cost of procuring substitute technologies, or any special, incidental, consequential, or indirect damages arising out of this Agreement.
6.05 Liability Limitations. The liabilities of both Parties pursuant to this Agreement are capped at the Fees (if any) paid by Licensee to Venduur during the month before the event(s) resulting in the liability. This liability limitation does not apply to Fees owed by Licensee to Venduur.
6.06 Indemnification. The Indemnifying Party shall indemnify, defend and hold the Indemnified Party harmless from all Claims by a third party relating to arising from a breach of this Agreement by the Indemnifying Party.
A. Notification. The Indemnified Party must provide written notice to the Indemnifying Party that in a reasonably timely manner. Failure to provide timely notice shall not excuse the Indemnifying Party of its obligations except to the extent that such delay actually impacts the end result. Notice provided with ninety (90) days after the Indemnified Party has actual knowledge of a Claim shall be deemed reasonably timely.
B. Ongoing Obligations. The Indemnifying Party shall bear full responsibility for all Claims and shall pay all attorneys’ fees and expenses incurred in connection with such Claims as and when incurred; provided, however, that (i) the Indemnifying Party shall keep the Indemnified Party informed of, and consult with the Indemnified Party in connection with, the progress of each claim; and (ii) Indemnifying Party shall not have any right, without the Indemnified Party’s written consent (which consent shall not be unreasonably withheld or delayed), to settle any claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability or wrongdoing (whether in contract, tort or otherwise) on the part of the Indemnified Party. Notwithstanding any of the foregoing, the Indemnifying Party shall have the right, in its absolute discretion, to employ attorneys of its own choice and to institute or defend any Claim at its own expense.
ARTICLE VII: GENERAL PROVISIONS
A. Severability. If any part, term, or provision of this Agreement is found illegal or in conflict with any valid controlling Law, the validity of the remaining provisions will not be affected thereby. In the event that the legality of any provision of this Agreement is brought into question because of a change in applicable Law, the Parties shall communicate openly with each other in a good faith manner to reconcile the change in Law with the provisions of this Agreement.
B. Waiver. The waiver of a breach of this Agreement may only occur by an express writing signed by the waiving Party. Such a written waiver will not constitute a waiver of any other breach.
C. Integration. The Agreement represents the entire understanding between the Parties. This Agreement supersedes all other agreements between the Parties that relates in any way to the Technology and/or the Services. All (if any) prior agreements, drafts, representations, statements, negotiations, marketing materials, and undertakings relating to the subject matter of this Agreement are hereby superseded by this Agreement.
7.02 Dispute Resolution/Adjudication.
A. Governing Law. The Agreement is governed exclusively by the substantive laws of the State of Michigan (without regard to its law of conflicts).
B. Venue. All disputes arising pursuant to this Agreement must be exclusively litigated in the federal courts located in the Eastern District of Michigan, or alternatively, in the state courts located in Wayne County, Michigan.
C. Purposeful Availment. By availing to access the Technology, Licensee and all of Licensee’s Personnel purposely avail themselves to the provisions set forth above in this Section 7.02. Both Parties agree the adjudication of any dispute in the state of Michigan is not an inconvenient forum for either Party.
D. Exclusions. The United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Uniform Computer Information Transactions Act (UCITA) do not apply in any way to this Agreement.
E. Attorney Fees and Litigation Costs. In a dispute between the Parties, the Party that prevails, or at least substantially prevails, against the other Party may recover its reasonable litigation expenses. Such litigation expenses shall include reasonable attorney fees, court costs, expert witness fees, and other related out of pocket expense from the non-prevailing Party.
7.03 Amendments. Any aspect of this Agreement can be modified by Venduur upon Venduur providing forty-five (45) day advance electronic notification to Licensee Such unilateral amendments by Venduur cannot single out any specific Licensee or any specific User—all Amendments must be generally applicable to a category of Licensee or category of Users. The remedy for a Licensee who disagrees with such an amendment is to cease use of the Technology and Services and terminate the Agreement with Venduur. In the context of this Section 7.03, notification can include e-mail notifications as well as notifications displayed on the Website.
7.04 Assignments. This Agreement imposes personal obligations on the Parties. Neither Party may assign this Agreement without the express written consent of the other Party. Such consent may be withheld for any reason or for no reason at all. Any attempt by either Party to assign any or all of its rights pursuant to this Agreement is null and void ab initio. Either Party may assign this Agreement upon providing written notice to the non-assigning Party without the permission of the non-assigning Party in the context of a merger, acquisition, or divestiture involving all or substantially all the assigning Party’s assets.
7.05 Relationship of the Parties.
A. No Agency, Partnership, or Employer Relationship. Nothing in this Agreement or any circumstances associated with it or its performance give rise to any relationship of agency, partnership or employer and employee between Parties or their Personnel.
B. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. No person who is not a party to this Agreement will have any rights pursuant to the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
7.06 Force Majeure. Neither Party will be liable for any default or delay in performance of its obligations under the Agreement if and to the extent the default or delay is caused, directly or indirectly, by a force majeure event that is outside the reasonable control of the Party.
7.07 Currency. All Fees payable pursuant to this Agreement shall be paid in U.S. Dollars unless otherwise specified.
7.08 Date/Time. For all purposes for which the date or time is to be determined pursuant to this Agreement, the applicable date and time are the date and time in Detroit, Michigan.
7.09 Taxes. All payments to Venduur under this Agreement shall be net of all sales, use, and other taxes which may be imposed upon such payments.
ARTICLE VII: DEFINITIONS
8.01 “Agreement” means the collective totality of all the binding promises between Venduur and Licensee.
If you have an account with Venduur as a Host/Facility then the following documents are included in your Agreement with Venduur:
If you have an account with Venduur as a Visitor/Guest then the following documents are included in your Agreement with Venduur:
If you do not have an account with Venduur, then as a User of the Website the following documents are included in your Agreement with Venduur:
B. “Host Agreement” means an Agreement between Venduur and a Host/Facility through which the Host/Facility obtains the ability to use the Technology to manage the certifications and other requirements for Guests/Visitors with active Visitor Agreements.
C. “Visitor Agreement” means an Agreement between Venduur and a Visitor/Guest through which the Visitor/Guest obtains the ability to use the Technology to certify compliance with the requirements of Hosts/Facilities with active Host Agreements.
8.02 “Claim” means collectively claims, damages, losses, injuries, liabilities, and any other form of legally cognizable responsibility.
A. “Indemnified Party” means the Party to an Agreement that is seeking indemnification from the other Party.
B. “Indemnifying Party” means a Party to an Agreement that is holding harmless the other Party, the Indemnified Party.
8.03 “Confidential Information” means information belonging to a Party that is not generally known by or accessible to the public. Confidential Information includes but is not limited to: (a) the Technology; (b) the Services; (c) Data; and (d) other information shared by the Disclosing Party to the Receiving Party. Confidential Information does not include information that: (I) is rightfully supplied to a Party by a third party without restrictions on confidentiality; (II) was or becomes generally known to the public without any fault on the part of the Party receiving such information pursuant to an Agreement; (III) is specifically allowed to be disclosed to certain third parties as set forth in the Agreement; or (iv) is specifically allowed to be shared or disclosed through the operation of the Technology.
A. “Disclosing Party” means the Party disclosing Confidential Information pursuant to the protections of the Agreement.
B. “Receiving Party” means the Party receiving Confidential Information pursuant to the protections of the Agreement.
8.04 “Data” means collectively: (1) information that is submitted to or from a Visitor/Guest; and/or (2) information that is created by the Technology utilizing information that is submitted by a User. Data can include but is not limited to Account Information, Browsing Information, Communications, Content, Contact Information, Feedback, and PHI.
A. “Account Information” means Data relating to the business account between a User and Venduur. Login IDs and passwords are examples of Account Information.
C. “Communications” means Data embodying digital communications such as e-mail, text messages, voice mail messages, telephone calls, and other forms of interactions between Venduur and a User.
D. “Contact Information” means Data that pertains to ways of communicating between Parties and Personnel. Contact Information can include phone numbers, e-mail addresses, physical addresses, social media IDs, fax numbers, and other similar types of information.
E. “Content” means Data relating the requirements of a Host/Facility and the satisfaction of those requirements by a Visitor/Guest.
F. “Feedback” means Data from Licensees that is provided regarding: (1) the functioning of the Technology and the Licensee‘s experience with the Technology; and (2) Content accessed through use of the Technology.
G. “Venduur Data” means all Data accessed by the Technology that does not originate from a Licensee.
H. “PHI” means protected health information under the Laws of the United States.
8.05 “Fee“ means a payment of money pursuant to the terms and conditions of a Visitor Agreement.
8.06 “Law” means collectively all applicable statutes, regulations, binding case law precedent, and other sources of binding legal authority.
8.07 “Party” means a legal person such as an individual human being or a business or other form of organization. Examples of a Party can include Venduur or a User, such as a Visitor/Guest, a Hosts/Facilities, or a person browsing the Website. The term “Parties” refers to more than one Party.
A. “Licensee” means an individual, business, partnership, government entity, or other organization accessing the Technology subject to a binding Agreement with Venduur. Licensees collectively include: (1) Hosts/Facilities who have executed a Host Agreement with Venduur; (2) Visitor/Guests who have executed a Visitor Agreement with Venduur; and (3) individual Users of the Website.
1. “Visitor/Guest” means a Licensee who has executed a Visitor Agreement with Venduur.
2. “Host/Facility” means a Licensee who has executed a Host Agreement with Venduur.
3. “Website Viewer” means a Licensee who is an Unaffiliated User.
B. “Venduur” means Patchwork Network, LLC, a Michigan limited liability company identified by the ID Number of 801718043 on the official Department of Licensing and Regulatory Affairs LARA database for Michigan business entities that operates under the name of “Venduur”.. The registered service address for Venduur is 31325 Harper Avenue in St. Clair Shores, Michigan 48082.
8.08 “User” means a human being interacting with the Technology in either an active or passive way.
A. “Personnel” means Users interacting with the Technology on behalf of a Licensee. By way of example, a business entity such as a Host/Facility can interact with the Technology through its Personnel. By way of further example, an individual Visitor/Guest may have additional Personnel who are authorized to interact with the Technology on behalf of the Visitor/Guest.
B. Unaffiliated User” means a User accessing the Technology without a relationship with a Visitor/Guest or Host Facility. An Unaffiliated User is not associated with Account Information and is merely a visitor of the aspects of the Website that are publicly accessible.
8.09 “Services” means collectively all benefits and functionality that Licensees can benefit from: (1) by accessing the Technology or (2) by interacting with the Personnel of Venduur.
8.10 “Technology” means collectively the Website and the Software that can be accessed through the Website. If an App is subsequently developed and offered as an alternative way to access the functionality of the Website, the Technology shall include the App and all Software in the App. Venduur and its suppliers hold all IP Rights in the Technology.
A. “App” means software applications (if any) that are intended to be downloaded and executed/run on computing devices such as a smart phones, tablets, smart watches, and other similar devices. Venduur may in the future offer an App as an alternative way to access the functionality of the Website but no such Apps currently exist.
B. “Documentation” means the online information describing the functionality of the Technology provided to Visitor/Guests and Hosts/Facilities on the Website.
C. “IP Rights” means all cognizable proprietary rights under U.S. law. IP Rights include but are not limited to patent rights, copyrights, trademark rights, trade dress rights, and trade secrets. IP Rights include currently vested rights as well as future contingent rights capable of fully vesting in the future, such as ownership of future patent applications.
D. “Server” means a computer controlled by Venduur and/or its suppliers on which Data is stored and accessed
E. “Software” means collectively all of the object code components (including but not limited to the HTML on the Website) that are accessible to Users
F. “Website” means the www.Venduur.com homepage, and all web pages accessible through that