Scribble Technologies Inc.
The services and products (collectively, "Services or Deliverables") provided by Scribble Technologies Inc. and its affiliates and subsidiaries ( collectively, "Scribble") shall be subject to the terms of this Service Agreement ("Agreement"). Scribble provides a variety of different Services and service-specific terms and policies may apply (the “Additional Terms“). If you will be using the Services on behalf of a legal entity, you agree to these terms on behalf of that organization and you represent that you have the authority to do so. In such case, “you” and “your” will refer to that legal entity. By using the Services, you agree to the following terms and are hereby bound by the terms and conditions of this Agreement and applicable Additional Terms.
Section 1. Order, License, Restrictions
(a) Order. Scribble (or any Scribble affiliates) may execute with You or Your Affiliates one or more Order Form(s) or Statement of Work(s) (‘SOW’) for Services under this Agreement. For the purposes of this Agreement, Affiliate shall mean an entity, any person or entity that directly or indirectly owns, is owned by, or is under common ownership with that entity. For purposes of this definition, ownership means control of more than a 50% interest in an entity.
(b) License. Subject to this Agreement and applicable Additional Terms, Scribble grants to You a non-exclusive, non-sub licensable, non-transferable license during the term stated on the applicable Order Form and/or SOW solely for Your internal business purposes and in accordance with the limitations under the applicable Additional Terms. You may; (i) access and use the Services and in accordance with the documentation provided by Scribble; and (ii) use and reproduce a reasonable number of copies of the documentation solely to support Your use of the Services.
(c) Restrictions. You agree that You will not, and will not permit any other party to: (i) allow any third party to access the Services or documentation, except as expressly allowed herein; (ii) modify, adapt, alter or translate the Services or documentation; (iii) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services or documentation for the benefit of any third party; (iv) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services, except as permitted by law; (v) create derivative works based on the Services or documentation; or (vi) access or use the Services for the purpose of developing or creating a competitive service or product.
Section 2. Privacy, Confidentiality, Your Content
(a) Privacy. Please read Scribble's Privacy Statement (the "Privacy Statement") as it describes the type of information we collect from You, Your customer and Your device. By using the Services, or agreeing to these terms, You consent to Scribble's collection, use and disclosure of Your data as described in the Privacy Statement.
(b) Confidentiality. Each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Disclosing Party’s Confidential Information to Authorized Users (with respect to You) or to those employees who have a need to know such Confidential Information to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include any information that the Receiving Party can establish: (i) was known to the Receiving Party prior to receiving the same from the Disclosing Party, free of any restrictions; (ii) is independently developed by the Receiving Party without reference to the disclosing party’s Confidential Information; (iii) is acquired by the Receiving Party from another source without restriction as to use or disclosure; or (iv) is or becomes part of the public domain through no fault or action of the Receiving Party. Notwithstanding anything to the contrary in this Agreement, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (if permitted by law) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
(c) Your Content. Services provided by Scribble may include functionality for uploading or providing photos, logos, and other materials or information (“Content”). You retain all rights and ownership to Your Content. By uploading, transmitting or otherwise using Content with the Services, You grant Scribble, during the applicable Term, a non-exclusive, worldwide, royalty-free, sub-licensable, and transferrable license to use Content for the purposes of providing the Services.
(d) GDPR and other privacy legislation. Scribble shall provide Services in accordance to with the Data Processing Agreement (“DPA”). The parties agree to comply with their respective obligations under Privacy Laws. In particular, Customer warrants and represents (on its behalf and on behalf of each of its Affiliates where applicable) that it has obtained all necessary authorisations and consents required for compliance with Privacy Laws prior to disclosing, transferring, or otherwise making available any Personal Data to Scribble and that it has provided appropriate notifications to data subjects describing the purpose for which their personal data will be used.
Section 3. Payment, Taxes, Term, Termination
(a) Payment. Unless stated otherwise on Order Form or SOW, Services will be billed at the start of Your term and payments are due upon receipt of invoice. All Fees shall be payable in U.S. dollars. If You has a good faith belief that You have been incorrectly billed by Scribble (or any Scribble affiliate), You must provide notice, in writing within seven (7) days following receipt of the applicable invoice specifying the calculation error and the amount of the adjustment or credit requested. Unless You have provided notice of such dispute with invoiced fees, payments not received by the due date shall bear interest of one and one-half percent (1.5%) or the maximum rate allowed by law. You shall be responsible for all reasonable 3rd party collection costs & legal fees incurred by Scribble (or any Scribble affiliate), in collecting amounts due. Scribble reserves the right to revoke any discounts applied to invoices past due. In the event of nonpayment, Scribble may, in addition to any other rights or remedies available to it at law or in equity, suspend Services. You shall pay to Scribble all applicable sales or use taxes assessed by a government authority with respect to the Services provided by Scribble under applicable Order Form and/or SOW.
(b) Taxes. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and You will be responsible for payment of all such taxes (other than taxes based on Scribble’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees or the provision of the Services to You. You will make all payments of Fees to Scribble free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Scribble will be Your sole responsibility, and Scribble will provide You with official receipts issued by the appropriate taxing authority, or such other evidence as Scribble may reasonably request, to establish that such taxes have been paid.
(c) Term, Termination:
Except where explicitly stated otherwise on Order Form or SOW;
(i) 12-month Subscription. Your 12- month subscription shall commence immediately upon the execution of an Order Form and shall continue for a successive twelve (12) month term and which automatically renews unless either Scribble or You provides the other a written cancellation notice at least 30-days prior to the end of the current term.
(ii) Pilot Subscriptions. If applicable, Your pilot subscriptions shall commence immediately upon the execution of an Order Form and shall continue for a successive six (6) month term. You will have the one-time option to cancel Your subscription by notifying firstname.lastname@example.org, 30 days prior to the end of the pilot period. If notification of cancellation is not received 30 days prior to the end of the pilot term, Your 12-month Subscription term shall commence.
(iii) Deliverables or Other Services. Services shall commence upon the Effective Date set forth in applicable SOW and will continue in full force and effect for a period of one (1) year.
Notwithstanding the foregoing, if this Agreement, Order Form or SOW are terminated prior to the end of the then term and there are outstanding Deliverables, then the Agreement, Order Form or SOW shall survive until the completion and payment of such Deliverables.
Section 4. Warranties, Disclaimers, Limitation of Liability
(a) Limited Warranties. Scribble represents and warrants You that the Services will operate free from errors during the term of Your use. Provided that You notify Scribble in writing of any breach of the foregoing warranty during the term of Your use, Scribble shall, as Your sole and exclusive remedy, make commercially reasonable efforts to correct errors. Scribble represents and warrants that any professional services will be performed in a manner consistent with generally-accepted industry practices. For any breach of the warranty in the previous sentence, Your exclusive remedy, and Scribble's entire liability, will be the re-performance of the professional services and if Scribble fails to re-perform the professional services as warranted, Your sole and exclusive remedy shall be to recover the Fees paid to Scribble for the deficient Services.
(b) Disclaimer. THE LIMITED WARRANTIES SET FORTH ABOVE ARE MADE FOR YOUR BENEFIT ONLY. EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE DOCUMENTATION, DELIVERABLES, SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS,” AND SCRIBBLE MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. SCRIBBLE DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
(c) Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE HEREUNDER; AND (B) EITHER PARTY’S LIABILITY TO THE OTHER AS A RESULT OF ANY CLAIM ARISING UNDER THIS AGREEMENT, REGARDLESS OF WHETHER SUCH CLAIM IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY YOU IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE ACT OR OMISSION GIVING RISE TO SUCH CLAIM. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
Section 5. Indemnification
(a) Indemnification by Scribble. Scribble shall defend You against any third-party claims that the use of the Services as permitted hereunder infringes any copyright, patent or other intellectual property right of a third party, and Scribble shall pay any losses, damages, costs, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) finally awarded by a court to such third party or otherwise agreed to in settlement of such claim by Scribble. If any portion of the Services becomes, or in Scribble’s opinion is likely to become, the subject of a claim of infringement, Scribble may, at Scribble’s option: (i) procure for You the right to continue using the Services (whichever is applicable); (ii) replace the Services with non-infringing software or services which do not materially impair the functionality of the Services; (iii) modify the Services (whichever is applicable) so that the Services becomes non-infringing; or (iv) terminate this Agreement or the applicable Order Form or SOW, and refund any Fees paid by You to Scribble for the applicable Services for the remainder of the term then in effect (whichever is applicable), and upon such termination, You will immediately cease all use of the documentation and Services (as applicable). Notwithstanding the foregoing, Scribble shall have no obligation with respect to any infringement claim based upon (x) any use of the Services not in accordance with this Agreement or as specified in the documentation; (y) any use of the Services in combination with other products, equipment, software or data not supplied by Scribble; or (z) any modification of the Services by any person other than Scribble or its authorized agents. This Section states the sole and exclusive remedy of You and the entire liability of Scribble, and any of the officers, directors, employees, shareholders, contractors or representatives of Scribble, for claims and actions described in this Section.
(b) Indemnification by You. You shall indemnify Scribble for any costs, expenses, or damages brought against Scribble by a third party alleging that any Content infringes or misappropriates such third party’s intellectual property rights, or arising from Your use of the Services or Content in violation of this Agreement, or applicable law and, You will indemnify Scribble from any damages, attorney fees and cost, finally awarded against ion as a result of, or for any amounts paid by Scribble as a result of, or for any amounts paid by Scribble under a settlement approved by You in writing of a claim, expenses or damages, provided that Scribble (b) promptly notifies You, in writing, of such claim, demand or cause (c) gives You sole control of the defense and settlement of the claim against ion (except that You may not settle any claim against Scribble).
(c) Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (i) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (ii) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (iii) the indemnified party shall (at the indemnifying party’s expense) reasonably cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
Section 6. Miscellaneous
(a) Suspension of Access. Scribble retains the right, to immediately prevent or restrict access to the Services or take any other action as necessary in case of technical problems, infringing or objectionable material, inaccurate listings, inappropriately categorized products or services, or actions otherwise prohibited by applicable law, the guidelines contained on the Platform, or for any other reason in the sole and absolute discretion of Scribble, and to correct any inaccurate listing or technical problems on the Services.
(b) Applicable Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without reference to conflicts of laws principles. Both parties expressly agree that any action relating to this Agreement shall exclusively be brought in New York, New York, and both parties irrevocably consent to the jurisdiction of the state and federal courts located in New York, New York. Each party expressly waives any objection that it may have based on improper venue or forum non-conveniens to the conduct of any such suit or action in any such court. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its use of the Services hereunder.
(c) Subcontractors. Scribble may subcontract this Agreement or any services or obligations hereunder to any third party. Notwithstanding any such performance through a subcontractor, Scribble shall not be relieved of its performance or obligations under this Agreement. Scribble shall be responsible for each of its subcontractor’s full and timely performance, and the acts and omissions of each such subcontractor within the scope of its agency with Scribble shall be deemed and treated as the acts and omissions of Scribble itself. Scribble shall also be responsible for compensating its subcontractors.
(d) Independent Contractors. The parties are independent contractors and nothing in this Agreement shall be deemed to create any partnership, joint venture or agency relationship between the parties. Neither party is, nor will either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.
(e) Severability. In the event any provision of this Agreement is held by a court of law or other governmental agency to be void or unenforceable, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions shall remain in full force and effect.
(f) Assignment. Neither party shall assign this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement to its successor pursuant to a merger, consolidation or sale of substantially all of its assets related to this Agreement, provided it promptly notifies the non-assigning party in writing of the assignment and the assignee agrees in writing to be bound by the terms of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns.
(g) Force Majeure. Neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance (other than payment of Fees due hereunder) caused by reasons beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, strikes, failure of suppliers, fires, floods or earthquakes.
(h) Notice. Any notice given under this Agreement shall be in writing and shall be effective (i) upon receipt or refusal if (a) delivered by hand or (b) sent via overnight mail by a nationally recognized express delivery service; or (ii) sent via U.S. mail, postage prepaid, certified mail return receipt requested, when addressed to the address set forth below:
c/o Scribble Technologies Inc.
49 Spadina Avenue, Suite 303
Toronto, ON Canada
(i) No Third Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
(j) Waivers. No delay or omission to exercise any right or remedy accruing to either party hereunder shall impair that right or remedy, or be construed to be a waiver of any breach or default. No waiver of any provision of this Agreement shall be valid unless in writing and signed by the waiving party.
(k) Compliance with Law.
(i) Each party may provide guidelines to help the other party comply with applicable laws and regulations, but each party using its own legal advisors will remain fully responsible for interpreting and complying with such applicable law and regulations with respect to its own business and its own use of the Services. If you are a customer operating as a “data controller” as defined in European General Data Protection Regulation 2016/679 (“GDPR”) you agree that you are responsible for notifying third parties who submit personal information to you through the use of our Services about Scribble privacy policies.
(ii) If applicable, Customer shall ensure and hereby warrants that it is relevant data subjects have been informed of, and have given consent of, use, processing and transfer of their personal data as required by all applicable data protection laws.
(l) Entire Agreement. This Agreement, together with the Order Forms, any SOWs, applicable Additional Terms and attached Exhibits, contains the entire agreement of the parties with respect to its subject matter and supersedes any prior or contemporaneous understandings or communications (oral or written) regarding such subject matter. This Agreement, Additional Terms, any Order Form, and any SOW may be modified only by a written amendment executed by an authorized representative of each party.
(n) Order of Precedence. If there is any conflict between the terms of this Agreement, the Additional Terms, Order Form and/or SOW then the Order Form and/or SOW shall govern in relation to that Service.
(o) Modifications. To the extent allowed by law, Scribble reserves the right, at its sole discretion, to modify or replace this Agreement and/or Additional Terms, or change, suspend, or discontinue the Services at any time by posting a notice or by sending You an email, both of which would be deemed a modification of the Agreement and/or Additional Terms. It is Your responsibility to check this Agreement and Additional Terms periodically for changes. Your continued use of the Services following the posting of any changes to this Agreement and/or Additional Terms constitutes acceptance of those changes.
The following Additional Terms shall apply to You to the extent the specific Service is included in applicable Order Form or SOW.
1. i-on interactive, Inc.
1.1 Platform & Services. ion is a Software as a Service used to create, launch and measure digital interactive content, landing pages, experiences and forms. ion provides a content platform (the ‘ion platform’) allowing You to create and launch interactive content. The ion platform may be integrated with a wide variety of APIs and marketing automation platforms. Additionally, subject to applicable fees, You may provision ion for the development of interactive content (‘interactive content development’).
1.2 Use License. Subject to Your compliance with the Agreement, Additional Terms, and to payment of all outstanding fees, Ion grants to You, during applicable term, a non-transferable, non-exclusive right and license to use the ion Platform solely for Your internal business purpose.
1.3 Limits. Each subscription level offers a different level of access as outlined in the applicable Order Form. You may not access or use those features within subscription levels of the Services to which it has not subscribed without payment of additional fees. ion reserves the right to periodically verify that your use of the Services complies with the terms of applicable Order Form and subscription level access.
1.4. Ownership. It is expressly agreed that all right, title, and interest in and to the technology used in connection with the delivery of Services (including any and all modifications, improvements or enhancements to the ion Platform as a result of any implementation Services rendered) are and shall remain the sole and exclusive property of Ion. Notwithstanding the foregoing, it is expressly agreed by Ion that all Content provided by You and all Your You data collected by You (“Data”) is and shall remain Your exclusive property.
1.5 Images Any photography, images and/or icons (collectively, 'Images') delivered with the Services requires written permission, by Ion, for reproduction or use outside of the Services. Images provided with the Services may be owned by a third party and licensed by Ion under different terms. Ion will not be held liable or responsible for any unlawful use or alteration of Images by You. It is Your responsibility to maintain and uphold the rules and regulations that pertain to any Images reproduced or used by You outside of the Services.
1.6 Restricted Data. You may not use the Services to collect or retain restricted information. “Restricted Data” means financial information, Social Security number, driver’s license number, passport number, and information protected by, inter alia, Family Educational Rights and Privacy Act (“FERPA”), the Gramm Leach Bliley Act (“GLBA”), Health Insurance Portability and Accountability Act (“HIPPA”) and/or Social Security Number Protection Act, or any other Data whose collection is restricted or prohibited under Applicable Laws. “Applicable Laws” means all applicable federal, state, and local statutes, laws, ordinances, regulations, rules, codes, governmental orders, requirements or rules of common law.
1.7 Your Account. You are fully responsible for all activities that occur under Your account, including for any actions taken by persons to whom You have granted access to.
2. Visually, Inc.
2.1 Platform & Services. Visually provides an online platform that includes membership opportunities, project workflow, collaboration, file management and other features (collectively, the “Platform”) to facilitate the provision of creative services (“Creative Services”) by connecting the You with service providers (“Vendors”). Visually also provides a set of services to (i) assist You in using the Platform (ii) scope Your requirements for Creative Services; (ii) identify one or more appropriate Vendors to provide such Creative Services; and (iv) provide additional assistance to You in connection with the receipt of such Creative Services, as may be required by mutual agreement (collectively, the “Visually Services”). For avoidance of doubt, Visually does not provide nor is it obligated to provide Creative Services, as those are provided by the Vendors assigned to the You. While the Visually Services are intended to assist the You in procuring the desired Creative Services, the You assumes responsibility for working with the Vendors and providing the required feedback, input and adherence to agreed-upon duration for a successful project.
2.2 Ownership; Licenses Subject to Your compliance with the Agreement, these Additional Terms and to payment of all outstanding Fees, You shall own all right, title and interest in and to all: 1) original or custom graphic design Deliverables; 2) original or custom video Deliverables, including vector artwork, pixel artwork, animation, and written copy; and 3) original or custom interactive Deliverables, including wireframes and design created for You, and Visually hereby makes all assignments necessary to effectuate the foregoing ownership. To the extent allowed by law, the foregoing assignment includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like. If for any reason the foregoing assignment is ineffective, Visually shall and hereby does grant You a perpetual, irrevocable, worldwide, royalty-free, nonexclusive, sublicensable, transferable right and license to exploit and exercise the Deliverables for any purpose. “Visually Background Materials” means, and, notwithstanding anything to the contrary, “Deliverables” shall not include, Visually’s proprietary or licensed software, tools, templates, methods, stock imagery and assets, code bases and libraries, as well as video sound deliverables, including music, voiceover, and sound effects, and know-how, pre-existing or otherwise, including (i) any of the foregoing which are generally applicable to Visually’s business, products or services, (ii) any derivatives, modifications, or improvements to the foregoing, and (iii) all intellectual property and proprietary rights embodied by or relating to the foregoing. If Visually incorporates any Visually Background Materials into any Deliverable provided to You hereunder, then Visually shall and hereby does grant You a perpetual, irrevocable, worldwide, royalty-free, nonexclusive, sublicensable, transferable right and license to use such Visually Background Materials solely in connection with Your use of such Deliverables. For broadcast usage specifically, if You displays their video Deliverables through the medium of broadcast television, additional fees may be incurred to cover the extended licensing of assets that are not produced in house by Visually. These include, but, are not limited to, stock photographs, logos, music, sound effects and voiceover. To remain legal and in compliance, the extended license for each of of these aforementioned assets must be purchased and managed by You. You hereby grants Visually a perpetual, irrevocable, worldwide, royalty-free, nonexclusive, sublicensable, transferable right and license to copy, modify, publicly perform and publicly display the Deliverables on Visually’s website.
2.4 General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, Visually shall not be prohibited or enjoined at any time by You from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the services specified under this Agreement. For purposes of this Agreement, “skills or knowledge of a general nature” shall include, without limitation, anything that might reasonably be learned or acquired in connection with similar work performed for another You.
2.5 Appropriate use of the Platform. Connecting the You with Vendors is an integral part of Visually’s model, and maintaining a supply of Vendors is essential to Visually’s core business. You represents and warrants that it will not attempt to circumvent, or circumvent, any of the communication or payment methods provided by the Platform: this includes, but is not limited to (i) submitting any proposals or soliciting any Vendors other than through the Platform; and (ii) paying any fees associated with the Creative Services other than to Visually as provided in this Agreement. During the term of this Agreement and for a period of three (3) years after, You represents and warrants it will not pay Vendors introduced to You outside the Visually Marketplace nor directly or indirectly solicit the Vendors to provide services outside the Visually Marketplace. Should You breach its warranty in this section, You will pay Visually a placement fee equal to the greater of (i) twenty-five percent (25%) of the Vendor’s equivalent estimated annual compensation or contract value, or (ii) $5,000. You further represents and warrants the Platform will serve as the primary means of communication between You and Vendor regarding the Creative Services and Deliverables, which is essential to Visually’s ability to provide the Visually Services and assist the You in its usage of the Platform and the Vendor delivery of Creative Services.
2.6 Non-Circumvention and Non-Solicitation of Vendors. Connecting the You with Vendors is an integral part of Visually’s model, and maintaining a supply of Vendors is essential to Visually’s core business. You represents and warrants that it will not attempt to circumvent, or circumvent, any of the communication or payment methods provided by the Platform: this includes, but is not limited to (i) submitting any proposals or soliciting any Vendors other than through the Platform; and (ii) paying any fees associated with the Creative Services other than to Visually as provided in this Agreement. During the term of this Agreement and for a period of three (3) years after, You represents and warrants it will not pay Vendors introduced to You outside the Visually Marketplace nor directly or indirectly solicit the Vendors to provide services outside the Visually Marketplace. Should You breach its warranty in this section, You will pay Visually a placement fee equal to the greater of (i) twenty-five percent (25%) of the Vendor’s equivalent estimated annual compensation or contract value, or (ii) $5,000. You further represent and warrant the Platform will serve as the primary means of communication between You and Vendor regarding the Creative Services and Deliverables, which is essential to Visually’s ability to provide the Visually Services and assist the You in its usage of the Platform and the Vendor delivery of Creative Services.