Engagement Services Terms and Conditions

Last updated October 2, 2023

THESE ENGAGEMENT SERVICES TERMS AND CONDITIONS ("Terms and Conditions") GOVERN THE ORGANIZATION'S ACQUISITION AND USE OF VITAL'S SERVICES PURCHASED PURSUANT TO THE ENGAGEMENT AGREEMENT ("ENGAGEMENT AGREEMENT"). TOGETHER, THESE TERMS AND CONDITIONS AND THE ENGAGEMENT AGREEMENT FORM THE "AGREEMENT".  CAPITALIZED TERMS HEREIN HAVE THE MEANING ASCRIBED TO THEM HEREIN, ANY CAPITALIZED TERMS IN THESE T&CS NOT DEFINED HEREIN HAVE THE MEANING SET FORTH IN THE ENGAGEMENT AGREEMENT.

Vital Network, Inc. ("Vital") makes available employee retention services as further described in the Engagement Agreement ("Services") including consultation and Vital's proprietary software platform ("Platform"), subject to these Terms and Conditions and the Engagement Agreement.

BY ACCESSING THE PLATFORM, AND/OR USING ANY OF THE SERVICES, THE ORGANIZATION IS AGREEING TO BE BOUND TO, AND ACCEPTING, THE AGREEMENT. ACCESSING THE PLATFORM AND/OR USING THE SERVICES INDICATES THE ORGANIZATION'S ACCEPTANCE OF THE AGREEMENT. "Organization" is the legal entity that entered into the Engagement Agreement or on whose behalf the individual accepting these Terms and Conditions is acting.

The Agreement is effective as of the first date of the Effective Date.

1.     Vital Responsibilities.  Vital will: (i) make the Services available to the Organization pursuant to the terms of the Agreement and the usage guides and policies as updated from time to time made available by Vital for the applicable Platform Services ("Documentation"); and (ii) provide standard support for the Platform Services at no additional charge.  Platform Services may be inaccessible or inoperable for any reason, including, without limitation: (a) equipment malfunctions; (b) periodic maintenance procedures or repairs which Vital may undertake from time to time; (c) planned downtime; or (d) causes beyond the control of Vital or which are not reasonably foreseeable (collectively, "Inaccessibility"). Vital will use commercially reasonable efforts to make the Platform Services available 24 hours a day, 7 days a week, except for Inaccessibility.

2.     Use of Services. 

2.1.   Subscriptions.  Services are purchased for the Subscription Term, and Services are subject to the limits, all as set forth in the Engagement Agreement. 

2.2.   Organization Obligations. The Organization will: (i) be responsible for its users' compliance with the terms of the Agreement and the Documentation; (ii) be responsible for the accuracy, quality and legality of all information submitted by its users to the Platform or otherwise in furtherance of the Agreement ("Organization Data"), the means by which the Organization acquired Organization Data, the Organization’s use of Organization Data with the Services; (iii) ensure that no personal data is submitted to the Platform; (iv) use commercially reasonable efforts to prevent unauthorized access to or use of the Services; (v) not share accounts, usernames, or passwords; and (vi) use the Services in accordance with the Agreement and all applicable laws and regulations.  

2.3.   Usage Restrictions. The Organization will not: (i) make the Services available to anyone other than the Organization or its users, or use the Services for the benefit of anyone other than the Organization, unless expressly stated otherwise in the Agreement; (ii) reproduce, duplicate, copy, sell, resell, license, sublicense, distribute, rent or lease the Services or the Platform, or include the Services or the Platform in a service bureau or outsourcing offering; (iii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (iv) use the Services to store or transmit software viruses or other harmful code, programs, or materials; (v) interfere with or disrupt the integrity or performance of the Platform, the Services, Vital's servers or other computers or Internet or network connections; (vi) attempt to gain unauthorized access to the Services, the Platform, or its related systems or networks; (vii) permit direct or indirect access to or use of the Services or the Platform in a way that circumvents a contractual usage limit or to build a competitive service, or use any Services to access, copy or use any of Vital intellectual property except as expressly permitted pursuant to the Agreement or the Documentation; or (viii) modify, copy, or create derivative works of the Services, the Platform, or any part, feature, function or user interface thereof.

2.4.   Support. The Organization may report an issue with the Platform Services that is not consistent with the Documentation ("Error") through email at support@vitalnetwork.com. Vital will endeavor to acknowledge receipt of such report within 2 business hours ("Acknowledgement"). Vital will investigate such report, and endeavor to resolve or provide a workaround: (i) within 6 business hours of Acknowledgement for Errors that prevent users from accessing the Platform; and (ii) within 18 business hours for Errors that are non-critical, such as Errors pertaining to the completion of Activities. Vital will respond to the Organization if the issue reported is not an Error. The Organization acknowledges and agrees that a workaround is an acceptable solution to resolving the Error, and not all Errors may be fixed.

2.5.   Suspension. Vital may suspend the Organization's access to the Platform at any time if: (i) in Vital's reasonable opinion, such action is necessary to preserve the security and proper operation of the Platform and any related products or services; (ii) the Organization has failed to comply with any of the terms of the Agreement, including making timely payments; or (iii) details provided for the purposes of registering are inaccurate.

3.     Cooperation.

3.1.     Each party agrees to cooperate reasonably in a timely manner and in good faith with the other in the performance of the Services and acknowledges that delays may otherwise result. 

3.2.     Organization agrees to: (i) cooperate with Vital to create Activity timelines; (ii) facilitate messaging and encourage timely action and completion, as applicable, regarding the Services and Activities; and (iii) coordinate onsite, online and telephonic meetings, and other resources as reasonably necessary for satisfactory and timely performance of the Services; (iv) assign dedicated internal personnel for each Engagement Agreement to serve as a single point(s) of contact for Vital; and (v) train its users generally in the use of the Platform.

3.3.     Each party agrees its respective employees and agents will reasonably and in good faith cooperate with each other in a professional and courteous manner in the performance of their duties under the Agreement.  Either party may suspend performance hereunder immediately upon written notice should the other party's employees or agents fail to act accordingly.

3.4.     Organization grants to Vital a temporary, limited, nonexclusive, non-transferable, worldwide license, without the right to sublicense, to list Organization's name on customer lists, web sites, and in mutually agreed-upon collateral sales materials. Organization agrees to participate in up to four (4) reference calls, upon request, in any given year.

4.     Fees and Payment.

4.1.   Fees. The Organization agrees to pay all applicable fees including, without exclusion, the subscription fees set forth in the Engagement Agreement ("Fees"). Subscription fees are: (i) based on Services purchased and not actual usage; and (ii) non-cancelable and non-refundable. Organization is responsible for providing complete and accurate billing and contact information to Vital and promptly notifying Vital of any changes to such information.

4.2.   Payments. Vital may, at its option, require subscribers to maintain at least one valid payment method for payment of Fees. The Organization's payment information may be processed and stored through a third-party payment processor. By creating an account, the Organization hereby authorizes Vital and its third-party vendors to process such payments. The Organization further acknowledges that its submission of payment will be subject to the Vital vendor’s own policies, including terms and conditions and privacy policies.

4.3.   Taxes.  Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, "Taxes"). The Organization is responsible for paying all Taxes associated with its purchases hereunder unless the Organization provides Vital with a valid tax exemption certificate authorized by the appropriate taxing authority.

5.     Intellectual Property.

5.1.  Reservation of Rights.  Subject to the limited rights expressly granted pursuant to the Agreement, Vital reserves all right, title and interest in and to the Services and the Platform, including all of their related intellectual property rights.  No rights are granted to the Organization other than those explicitly set forth in the Agreement.

5.2.  Access to and Use of the Services and Platform.  The Organization has the right to access and use the Services and the Platform subject to the terms set forth in the Agreement.

5.3.  Grant of Rights by the Organization.  Subject to limitations and restrictions based on permission levels, the Organization agrees and hereby authorizes Vital to communicate with and share certain content, information, and other data with administrators and others associated with the Organization, including Organization Data. The Organization authorizes Vital to collect, store, aggregate, analyze and disclose anonymous data and information about its use of the Platform which does not contain any information that identifies the Organization or any individual user (collectively "Usage Data"). Organization Data does not include Usage Data, and Usage Data is owned by Vital.

5.4.   User Comments. The Organization grants to Vital the unrestricted, perpetual, world-wide right to use, disclose and incorporate into Vital services any suggestions, enhancement requests, or other feedback related to the Services and/or Vital ("Comments") made by the Organization or its users at no cost.

6.     Confidentiality.

6.1.  Definition.  "Confidential Information" means all information disclosed by one party to the other party, whether orally or in writing or electronically, that is identified as confidential, or should be reasonably understood to be confidential. The Organization's Confidential Information includes Organization Data, Vital's Confidential Information includes the Services, the Platform and information related thereto, the Agreement.  Confidential Information of each party includes business and marketing plans, technology and technical information and financial information.  Confidential Information does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) is received from a third party without knowledge of any breach of any obligation owed to the disclosing party; or (iv) was independently developed by the receiving party.

6.2.  Protection of Confidential Information.  Each party shall protect the Confidential Information of the other party with at least the same degree of care it uses to protect its own confidential information, but not less than a reasonable standard of care.  Each party may share the Confidential Information of the other party only with its employees and contractors that have a need to know for purposes consistent with the Agreement that are subject to non-disclosure obligations no less restrictive than those set forth herein.  In the event a party is compelled by law to disclose Confidential Information of the other party, such party will, to the extent not prohibited by law, notify the other party of such obligation in advance of performing such obligation.

7.     Representations and Disclaimers.

7.1.  Representations.  Each party represents that it has validly entered into the Agreement, and that it has the legal power and authority to do so.

7.2.  Informational Use Only. The information provided through the Services is for informational purposes only. Vital makes no representations that the Services or any component thereof will improve the performance of any individual, Organization employee or the Organization.

7.3.  Disclaimer of Warranties.  VITAL AND ITS AFFILIATES PROVIDE THE SERVICES "AS IS" WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, VITAL DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, AND NON-INFRINGEMENT. THE ORGANIZATION EXPRESSLY AGREES THAT ITS USE OF THE PLATFORM IS AT THE ORGANIZATION'S SOLE RISK.

8.     Limitation of Liability

8.1.  Aggregate Liability.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF A PARTY TOGETHER WITH ITS AFFILIATES ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY THE ORGANIZATION AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.  THIS LIMITATION WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY AND REGARDLESS IF THE ACTION IS IN CONTRACT, TORT OR OTHERWISE.

8.2.  Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE.  THIS LIMITATION WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR IF A PARTY'S OR ITS AFFILIATES' REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.  THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9.     Term and Termination

9.1.  Duration of Terms and Conditions.  These Terms and Conditions are effective as of the Effective Date, and continues until the Subscription Terms of all Engagement Agreements have expired or been terminated.

9.2.  Term of Services. The Subscription Term is as set forth in the applicable Engagement Agreement. 

9.3.  Termination.  A party may terminate an Engagement Agreement for cause upon thirty (30) days written notice to the other party of a material breach, if such breach remains uncured at the expiration of such period.

9.4.  Effect of Termination.  In the event the Organization terminates an Engagement Agreement for Vital's unresolved material breach pursuant to the terms of the Section herein entitled "Termination", Vital will refund the subscription fees paid for the portion of the Subscription Term remaining after the effective date of termination.  In the event Vital terminates an Engagement Agreement for the Organization's unresolved material breach pursuant to the terms of the Section herein entitled "Termination", the Organization agrees it will not be entitled to a refund of fees paid for the portion of the Subscription Term remaining after the effective date of termination.

9.5.  Surviving Provisions.  The Sections entitled "Fees and Payment", "Reservation of Rights", "User Comments", "Confidentiality", "Disclaimer of Warranties", "Limitation of Liability", "Surviving Provisions" and "Miscellaneous" will survive any termination or expiration of these Terms and Conditions.

10.  Miscellaneous

10.1.  Governing Law, Venue, Waiver of a Jury Trial. The Agreement, and any disputes arising out of or related to such, shall be governed exclusively by the internal laws of the State of Minnesota, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods.  The state and federal courts located in Hennepin County, Minnesota shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement.  Each party hereby consents to the exclusive jurisdiction of such courts.  Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement.

10.2.  Entire Agreement and Order of Precedence. The Agreement is the agreement between the parties, and is the entire agreement between the Organization and Vital, regarding the Organization's use of the Services and access to the Platform and supersedes all prior and contemporaneous agreements and proposals, written or oral, concerning the Organization's use of the Services and access to the Platform. The parties agree that any term or condition set forth in the Organization's ordering documents (excluding the Engagement Agreement) is void.  In the event of a conflict between these Terms and Conditions and an Engagement Agreement, the terms of the Engagement Agreement take precedence. Titles and headings are for convenience only, and will not affect the construction of any term.

10.3.  Third-Party Beneficiaries. There are no third-party beneficiaries of the Agreement.

10.4.  Assignment. The Organization may not assign its rights or delegate its duties under the Agreement without Vital’s written consent.

10.5.  Waiver; Severability. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. If any provision of the Agreement is determined to be illegal or unenforceable, then such provision will be deemed null and void, and the other provisions will remain fully effective and enforceable.