Terms of Service for Application Developer Customers

Terms of Service for Application Developer Customers 

 

Last updated: February 21, 2025

 

Before accessing and using the Vim Platform, please read these terms carefully as they are legally binding and contain your responsibilities and restrictions in using the Vim Platform and the Documentation (as defined below). If you do not agree to these terms, do not access or use the Vim Platform or the Documentation. We may change these terms from time to time as further detailed below and by continuing to use the Vim Platform or the Documentation after an update, you are accepting the updated terms.

These terms of service for application developer customers (“Canvas Terms”), are between you, on behalf of yourself or on behalf of the legal entity you are acting on behalf of (in either case, “Customer”), and Vim, Inc. (“Vim”) and govern your access to and use of the Platform (as defined below), the Documentation, Vim Canvas Developer Platform™(defined below), which shall be used to integrate your application (“Customer Application”) with the Platform, and your listing (if applicable) on the Vim Canvas Marketplace (defined below). These Canvas Terms, together with the Business Associate Agreement signed or to be signed between you and Vim (the “BAA”), Vim’s Privacy Policy, the Application Developers Security Best Practices  and the Documentation (as defined below), and any order form (“Order Form”) to the extent signed between you and Vim, and all appendices attached to such documents or hereto and incorporated herein by reference, are collectively referred to as the “Agreement.”  If you enter into these Canvas Terms on behalf of a legal entity, you represent that you are a duly authorized representative with the authority to bind that legal entity to this Agreement. All references to “you” and “your” in this Agreement mean the person accepting this Agreement as an individual or the legal entity for which the representative is acting. 

1. Definitions.

1.1 “Account” means your account with Vim. 

1.2 “Account Admin” means the administrator of your Account. 

1.3 “Authorized User(s)” means any individual or entity who is authorized by you to access the Account.

1.4 “Provider” has the meaning set forth in Section 1.9. 

1.5 “Customer Application Description” means all data and information provided by Customer to Vim with regards to Customer Application, including, without limitation, its business use case, manifest, Customer Application Public Content (defined below), functionalities, components, technical processes, features, UI, requested permissions, and any additional information that describes Customer Application.

1.6 “Customer Application Public Content” means the content submitted by Customer through Vim Canvas Developer Platform™ in relation to the Customer Application, including the applicable End User Terms, elected by Customer to be visible to Providers and their end users.

1.7 “Documentation” means any materials provided by Vim describing the Platform and the use and operation thereof.

1.8 “EHR” means any Electronic Health Record application or equivalent system. 

1.9 “Platform” means Vim’s point-of-care bidirectional connection platform connecting healthcare stakeholders (such as you, the Customer) and Customer’s Application to healthcare providers’ (“Providers”) EHR workflows. The Platform includes all products, APIs, SDKs, and any other tool, software, or service provided by Vim, including, without limitation, Vim Canvas Developer Platform™, Vim Canvas Marketplace, Vim OS SDK, the Documentation, and the Sandbox EHR. 

1.10 “Platform Usage Data” means any data generated through the use of the Platform, or through automatic processes in the Platform, including, without limitation end-user input, any type of system transaction, logs, analytics data, and metadata. 

1.11 “Sandbox EHR” means the Vim-owned simulation of a generic EHR environment replicating EHR workflow allowing you to test the Customer Application prior to submitting it for review.

1.12 “Vim Canvas Developer Platform™” means a platform that enables application developers to use the Vim OS SDK in their applications and leverage the Vim technology and interfaces to build, develop, test, deploy, and support their products and services that interact with the Platform.

1.13 “Vim OS SDK” means Vim’s software framework library that forms the integration point between the Customer Application and the Platform.  

1.14 “Vim Canvas Marketplace” means an online marketplace that makes third-party applications available to Providers and/or their end users, through the Platform. 

2. License to the Platform. 

2.1 Access and License granted by Vim. Subject to Customer’s compliance with the Agreement, Vim hereby grants Customer and the Authorized Users, for the term of the Agreement, a limited, revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable license to access the Platform and to download, install, and use the Vim OS SDK to develop the Customer Application and to integrate Vim’s software contained in the Vim OS SDK into the Customer Application to surface the Customer Application through the Platform to Providers and their end users. To access and use the Platform, you must (1) have a supported computer device, web browser, and internet connection (2) comply in full with the Platform guidelines and any additional instructions provided to you by Vim in connection with your use of the Platform, as may be updated from time to time. 

2.2 License Restrictions. When accessing or using the Platform, the Vim OS SDK, or the Documentation, or when surfacing Customer Application through Vim Canvas Developer Platform™, you, and your Authorized Users shall:

2.2.1 Use the Vim OS SDK subject to any guidelines and requirements provided by Vim.

2.2.2 Not sublicense, sell, assign, transfer, copy, lease, lend, or redistribute the Vim OS SDK.

2.2.3 Request permissions only to the extent required for the proper functioning of the Customer Application’s use cases as outlined in the Customer Application Description and as approved by Vim (“Permissions”).

2.2.4 Comply with the Permissions granted to the Customer Application and not circumvent, interfere, degrade, or otherwise disrupt such Permissions.

2.2.5 Refrain from adding any code, features, algorithms, or business logic that is not directly related to your Customer Application as described in the Customer Application Description, unless such additional code, feature, or business logic has been disclosed to and approved in writing by Vim.

2.2.6 Strictly refrain from presenting any ads or promotional materials on the Customer Application. 

2.2.7 Not install, or request any Provider to install, any malicious software, or viruses, including any processes not required for the Customer Application functionality. 

2.2.8 Not manipulate or change any special codes that uniquely identify or are assigned to your Customer Application or conceal or alter the origin of queries originating from your Customer Application.

2.2.9 Not create an unreasonable burden or excessive load on the Platform or the EHR.

2.2.10 Not engage, interfere, or take part in any activity that may harm, disrupt, damage, negatively impact, or access in an unauthorized manner, Vim’s servers, systems, networks, data, applications, or any other Platform component or service, including third-party services available through the Platform. 

2.2.11 Not reverse engineer, modify, disassemble, reconstruct, decompile, copy, or generate derivative works of the Platform or the Documentation.

2.2.12 Strictly avoid using a user interface similar to that of any Vim-owned application or state or imply that Vim endorses, sponsors, or guarantees the Customer Application.

2.2.13 Not probe, scan, test, disclose, or exploit any security, privacy, or business vulnerabilities that exist or may exist in any Vim servers, systems, networks, data, applications, or any other Platform component or service, including third-party services available through the Platform.  

2.2.14 Refrain from soliciting Providers to disable or remove their connection to the Platform. 

2.2.15 Refrain from taking any action that puts Providers at any security, privacy, or business risk.

2.2.16 Refrain from any fraudulent, criminal, or unethical activities including any activity in violation of the Agreement.  

2.2.17 Not sell any Provider data.

2.2.18 Not remove any notices, logos, marks or references to any of Vim’s legal terms from the Platform.

2.2.19 Not access the Platform if you are a Vim competitor unless agreed by Vim in writing.

2.2.20 Not attempt, nor assist or permit any third party, to engage in any of the activities prohibited under this section.

2.3 Access and License granted by Customer. Customer hereby grants Vim, during the term of this Agreement, a limited, revocable, non-exclusive, non-transferable, non-sublicensable, non-assignable, royalty-free license to access, use, perform, display, analyze, launch, resell, or distribute the Customer Application and Customer Application Public Content solely to (1) exercise or fulfill Vim’s rights or obligations under this Agreement, (2) ensure Customer complies with the provisions of this Agreement, (3) market the Platform, including the Vim Canvas Developer Platform™, the Vim Canvas Marketplace, and the Customer Application, (4) improve the Platform, including Vim Canvas Developer Platform™ and Vim Canvas Marketplace, and (5) as may be required by applicable law, court order, or governmental authority. 

3. Customer Account.

3.1 Account Admin. You may identify one or more Account Admins for your Account. The Account Admin is responsible for (a) identifying and enabling Authorized Users; (b) establishing the specific rights and permissions and scope of access to the Account (c) deactivating or otherwise terminating Authorized Users whose employment or engagement with Customer terminates; (d) acting upon any suspected or unauthorized access to and use of the Platform and Customer Application; and (e) approve certain add-ons, new functionalities and features, updates, and additional terms. You represent and warrant that the Account Admin is authorized to perform the tasks set forth herein and act on your behalf. Vim may rely upon actions taken, information provided, or instructions given by the Account Admin to Vim with respect to the Platform and the Customer Application. 

3.2 Customer’s Responsibilities. You bear full responsibility for all activities taking place under your Account. You are responsible for ensuring that your Authorized Users individually authenticate their Platform sessions directly with Vim. Without limiting any of the Customer’s obligations under this Agreement, you must maintain the confidentiality of your Account credentials. You shall not disclose these credentials to any third party under any circumstances. In the event you suspect that unauthorized access has occurred, or if your account has been used improperly, you hereby commit to promptly notify Vim as soon as possible. You are required to actively engage in any review or approval processes relevant to the Customer Application integration.

3.3 Access to Account Information. Vim may access, preserve, and disclose any Authorized User’s account information to: (i) comply with any legal process; (ii) enforce this Agreement; (iii) respond to claims that your acts or any acts by your Authorized User violate the rights of third parties; (iv) provide account support; or (v) protect the rights or property of Vim and its affiliates and other users of the Platform; provided that Vim shall provide only the minimum amount of account information as necessary to comply with the same. 

3.4 Account Suspension. Vim, at its sole discretion, may suspend and/or deny your access to the Platform if there is a reasonable suspicion that you have breached this Agreement. Your access to the Account may be restored, or terminated as stipulated in this Agreement. If possible, we will endeavor to provide you with commercially reasonable notice and an opportunity to cure such breach, prior to taking any action contemplated in this section.

4. Customer Application.

4.1 Customer Application Description. Customer shall disclose to Vim all required information requested by Vim as part of the Customer Application submission process, including the Customer Application Public Content. Especially, Customer shall disclose to Vim information on any Artificial intelligence (AI) technology that is currently, or intended to be, embedded within Customer Application. Any deviation from the Customer Application Description shall require Vim’s written approval. You are solely responsible: (i) for such information provided by you; (ii) to provide such information in an accurate manner, and to timely update any change to such information in accordance with this Agreement.  

4.2 Listing on Vim Canvas Marketplace. Vim may allow you to list the Customer Application on Vim Canvas Marketplace. Such Customer Application listing, is subject to Vim’s review and determination whether Customer Application complies with the Agreement, and any eligibility requirements set by Vim at its sole discretion. You acknowledge that Vim has no obligation to list, offer, or display Customer Application on Vim Canvas Marketplace. Listing of the Customer Application on the Vim Canvas Marketplace does not constitute an endorsement of Customer Application or a guarantee of its reliability and quality, nor does it constitute any obligation that the Customer Application won’t be deactivated, suspended or removed. 

4.3 Customer Application End-User Terms and Privacy Policy. In order for Customer Application to be made available to end users through the Platform, it must be subject to end-user terms privacy policy, a business associate agreement according to HIPAA, and any other required commercial agreements and/or order forms as applicable (collectively, “End User Terms”), to be presented to end users before downloading or accessing Customer Application. To the extent that the End User Terms conflict with this Agreement, this Agreement will prevail. The End User Terms are solely between you and the end user. Vim will not be responsible for, and will not have any liability whatsoever under, any End User Terms. You will protect the privacy and legal rights of any third party with respect to data provided to you, and/or provided by you, through the Customer Application and the Platform. If the users provide you with, or your Customer Application accesses or uses, usernames, passwords, or other login information or personal information, you agree to make the end users aware that the information will be available to your Customer Application, and you agree to provide all legally adequate privacy notices and protections for those end users. Your Customer Application may only use that information for the limited purposes for which the end user is authorized. If your Customer Application accesses or stores personal or sensitive information provided by end users, you agree to do so securely and only for as long as it is needed.

4.4 Customer Responsibilities. 

4.4.1 Updates to Customer Application. You remain solely responsible for the Customer Application, its proper functioning, and its quality, compliance with applicable laws and regulations, security, and support to your end users. If Vim provides an update or maintenance release for the Vim OS SDK, these Canvas Terms will govern such update or maintenance release. Your continued access or use of the Vim OS SDK following an update or maintenance release will constitute binding acceptance of such update or maintenance release. You are solely responsible for implementing and using the most current version of the Vim OS SDK and for making any changes to the Customer Applications required to ensure the Vim OS SDK embedded with Customer Application is working properly as a result of any such update or modification. Upon Vim’s reasonable request, you will fix bugs and resolve any end user issues that require Customer Application updates. Updates must not significantly change the Customer Application’s characteristics or functionalities as initially reviewed and approved by Vim, unless you inform Vim prior to making such significant changes and submit the changes for Vim’s review. The Customer Application must continue to meet the applicable standards and requirements set forth by Vim, after you update the Customer Application. You must provide prior notice to end users of any updates that may affect their use of the Customer Application or its costs. Failure to comply with these obligations may result in the suspension or removal of your Customer Application from the Platform.

4.5 End User Support. You are responsible for undertaking or handling the support and maintenance of Customer Application and any complaints about Customer Application. You agree to supply and maintain valid and accurate contact information that will be displayed in your Customer Application in a readily accessible manner and made available to end users for customer support and legal purposes.

4.6 Removal of Customer Applications. Vim does not undertake any obligation to monitor the Customer Application or its content. Vim may monitor Customer Application on the Platform on an ongoing basis, to ensure that (a) Customer Application complies with the provisions of this Agreement and (b) Customer Application adheres to the Customer Application Description. If we reasonably believe Customer Application violates the law, infringes or misappropriates the rights of any third party, creates potential liability for or may have an adverse impact on Vim (for example, if a Customer Application has an adverse economic, reputational or security-related impact), may cause serious harm to end user devices or data, or otherwise violates a material term of the Agreement (“Prohibited Use”), we may reject, remove, suspend, or limit the Customer Application including without limitation removing it from the Platform. We reserve the right to suspend and/or bar any Customer Application or Customer from the Platform. We will endeavor to provide you with prior notice of any Prohibited Use and an opportunity to cease from such Prohibited Use prior to taking any action contemplated in this section. Notwithstanding the foregoing, we may remove or disable access to Customer Application without prior notice as we deem reasonably necessary, including without limitation, in connection with illegal content, where the content may disrupt or threaten the Platform or in accordance with applicable law or any judicial, regulatory, or other governmental order or request. In the event that we remove your Customer Application without prior notice, we will provide prompt notice to you, after removal, unless prohibited by law.

5. Customer Representations and Warranties. You represent and warrant that:

5.1 You are of legal age under the rules of your jurisdiction and you have not been charged with any crime or felony under U.S. law, nor are you barred by any authority, including a professional guild, to provide products and services to any Provider.

5.2 Your name or the legal entity identified in the Customer Application Description is the correct legal name of the Customer Application owner. You shall consistently display such name as the Customer Application owner across all communications in connection with the Customer Application, including without limitations, in your End-User Terms.

5.3 You shall comply with the License Restrictions set forth in Section 2.2 above and with the Application Developers Security Best Practices.  

5.4 (a) You commit to supplying accurate, truthful, and complete information in the Customer Application Description and ensuring its ongoing accuracy, and (b) throughout your use of the Platform, the Customer Application shall adhere to the Customer Application Description.

5.5 (a) Your End User Terms comply with all applicable law, (b) you will obtain and maintain all consents and permissions required in connection with the collection, use, storage, and sharing of end-user data in clear, understandable and accurate terms, including without limitation, all patient consents and authorizations necessary for your use of patient data; (c) you have and will retain records sufficient to demonstrate compliance with end-user and patient consent and authorization requirement, (d) you or Customer Application will not transmit, store, access or use end-user data outside the scope of what the end user consented to, and (e) your End User Terms will not be less protective of Vim’s rights in the Vim OS SDK as contained in these Canvas Terms.

5.6 (a) Any use of an AI component within Customer Application shall comply with all applicable state and federal laws and (b) Customer will obtain all necessary users’ consent from all end users for any AI component embedded in Customer Application. 

5.7 (a) You and your Authorized Users may use the Platform, and launch the Customer Application through the Platform, only in accordance with applicable law, (b) Customer Application, and any content displayed through it, does not and will not infringe, misappropriate, or violate a third party’s patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy, and (c) you will be solely responsible for and will pay any license fees, royalties or other liabilities related to Customer Application; and (d) deploying and surfacing Customer Application through the Platform, as permitted hereunder, will not subject Vim to, or cause Vim to violate, any  third party open source software or other third party intellectual property or third party terms.

6. HIPAA Compliance. The parties will comply with the BAA. Each party is responsible for obtaining any required authorizations and consents to use or disclose any individually identifiable health information in compliance with all federal and state privacy laws, rules and regulations, including but not limited to the Health Insurance Portability and Accountability Act of 1996, as amended from time to time, together with the associated regulations adopted (“HIPAA”). 

7. Ownership.

7.1 Platform Ownership. You understand and acknowledge that Vim owns all rights, titles, and interests in and to the Platform, Platform Usage Data, and all software (in source code or object code), processes, algorithms, techniques, architecture, designs, interfaces, and items of a similar nature, whether licensed or developed by Vim (directly and/or through its affiliates, consultants, and/or subcontractors), whether in connection with or independently of Vim’s provision of the Platform, and modifications, enhancements, and/or derivative works to all of the above, whether pre-existing or developed during Vim’s provision of the Platform to you, including, without limitation, any modifications based on your feedback and any copies or Documentation relating to the foregoing and you shall have no rights or interests therein other than the rights expressly granted to you under these Canvas Terms. The Platform, or any component thereof, shall not be deemed to be a “work made for hire,” as that term is defined in 17 U.S.C. § 101. 

7.2 Customer Application Ownership. You own all rights, titles, and interests in and to the Customer Application and Vim shall have no rights or interests therein other than the rights expressly granted to Vim under these Canvas Terms. The Customer Application or any component thereof, shall not be deemed to be a “work made for hire,” as that term is defined in 17 U.S.C. § 101. 

8. Term; Termination.

8.1 Term. This Agreement shall continue until terminated in accordance with the terms hereof.

8.2 Termination by Vim. Subject to any termination provisions set forth in an Order Form between you and Vim, Vim may terminate the Agreement (i) following your material breach of this Agreement, and the breach is uncured within thirty (30) days of Vim’s written notice to you during which Vim may suspend your access to the Platform in accordance with Section 3.4, (ii) immediately, if your breach is incapable of being cured based on Vim’s opinion in accordance with Section 4.6, or (iii) immediately if Customer Application does not adhere to the Customer Application Description or engages in any Prohibited Use in accordance with Section 4.6.  

8.3 Termination by Customer. Subject to any termination provisions set forth in an Order Form between you and Vim, you may terminate this Agreement at any time by removing the Vim OS SDK from the Customer Application’s code or requesting Vim to close your Account. 

8.4 Termination due to insolvency. Either party may terminate this Agreement upon notice to the other party if the other party becomes insolvent, makes an assignment for the benefit of creditors, has a receiver or trustee appointed, or is the subject of a proceeding under bankruptcy or insolvency law that is not dismissed within thirty (30) days of the filing date thereof.

8.5 Post-termination provisions. In the event of any expiration or termination of this Agreement (i) all of your rights to access and use the Platform and Vim’s obligations under this Agreement shall cease, except as otherwise provided in the Agreement or agreed in writing between the parties; (ii) you agree to uninstall and destroy any copies of the Platform in your possession of or in the possession of your Authorized Users’. Upon termination of this Agreement, those clauses which by their nature are intended to survive shall survive.

9. Confidentiality.  

9.1 Confidential Information. Each party acknowledges access to the other party’s confidential and proprietary information which may include without limitation, information regarding products, operations, business plans, strategies, processes, customers, pricing, product roadmaps, procedures, billing, and collection procedures (the “Confidential Information”).

9.2 Confidentiality obligation. Each party agrees to use such Confidential Information only as contemplated by this Agreement and further agrees not to disclose any Confidential Information without the prior written consent of the disclosing Party. 

9.3 Non-Confidential Information. Confidential Information will not include information that was independently developed by the receiving Party without use of or reference to any Confidential Information belonging to the disclosing Party; or was acquired by the receiving Party from a third party having the legal right to furnish same to the receiving Party without disclosure restrictions; or was generally known by or available to the public through no fault of the receiving Party.  A receiving Party’s obligations of confidentiality hereunder shall continue in perpetuity with respect to the disclosing Party’s Confidential Information that recipient has previously received until the obligations no longer apply pursuant to the exclusions set forth herein. The provisions of this section hereby supersede any prior written or oral agreements between the parties regarding confidentiality or nondisclosure.

9.4 Disclosure of Confidential Information under a court order. These confidentiality obligations will not restrict any disclosure required by order of a court or any government agency. The receiving Party will give prompt notice to the disclosing Party of any such order, if so permitted thereunder and will reasonably cooperate with the disclosing Party at the disclosing Party’s request and expense to obtain a protective order.  

10. Fees and Payment Terms. Where applicable, you agree to pay Vim the fees as set forth in an applicable Order Form (the “Fees”). Unless an Order Form includes specific payment terms, all payments under this Agreement shall be made net + 30 days from the date that appears on the payment request sent to you by Vim. Unless indicated otherwise, the Fees are non-refundable. If you fail to pay Vim the applicable Fees, Vim may suspend or terminate the Agreement and your access to the Platform, by providing you with 10 days prior notice and the opportunity to cure during such 10-day period.

11. Mutual Representations; Warranties; Disclaimers.

11.1 General. Each party hereby represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement; (ii) this Agreement is a valid and binding obligation of such party; and (iii) the execution and performance of this Agreement by either party will not result in a breach of any agreement, instrument or document to which it is a party.

11.2 No Warranties. Except for any warranties expressly made herein, THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND VIM EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE HEREUNDER. VIM MAKES NO GUARANTEE, WARRANTY, OR REPRESENTATION (i)  REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM (ii) REGARDING THE ACCURACY OR RELIABILITY OR CORRECTNESS OF ANY DATA PRESENTED ON, OR THROUGH, THE PLATFORM (III) THAT THE PLATFORM IS ERROR-FREE OR RELIABLE. YOU BEAR THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM OR THE SERVICES. NO ADVICE OR INFORMATION, WHETHER COMMUNICATED ORALLY OR IN WRITING FROM ANY OTHER SOURCE, SHALL ESTABLISH ANY WARRANTY OR CONDITION UNLESS EXPLICITLY STATED IN THESE CANVAS TERMS.

12. Limitation of Liability; Indemnification. 

12.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL VIM BE HELD LIABLE FOR TERMINATION, SUSPENSION, DISCONTINUANCE, OR DISCONNECTION OF THE PLATFORM. EXCEPT FOR GROSS NEGLIGENCE, WILLFUL OR UNLAWFUL MISCONDUCT OR IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS, OR AS EXPRESSLY AGREED IN WRITING BETWEEN THE PARTIES, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VIM’S LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE FEES PAID TO VIM BY YOU WHETHER A CLAIM FOR ANY SUCH CAUSES OF ACTION, LIABILITY, LOSSES OR DAMAGES IS PREMISED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER THEORIES OF LIABILITY, EVEN IF VIM HAS BEEN APPRISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING.

12.2 Indemnification by Vim. Vim will defend, indemnify, and hold Customer harmless from and against third party claims, liabilities, obligations, judgments, causes of action, costs and expenses (including reasonable attorneys’ fees) to the extent arising out of a claim filed in a court of competent jurisdiction alleging that the Platform (except for Customer Application and other information or data provided by third parties displayed through the Platform) infringes a third party’s intellectual property rights (“Infringement Action”). Vim’s indemnification obligation will not apply to the extent that the Infringement Action is based upon: (i) the use of the Platform in combination with any product, service or activity not furnished, performed, recommended or approved in writing by Vim; (ii) the use of the Platform in violation of this Agreement; (iii) Customer’s modification of the Platform without Vim’s prior written consent; (iv) the Platform is not up to date to the latest version released by Vim (unless Vim allows using an older version of the Platform), where the latest version incorporates modifications that, in Vim’s opinion, avoid the infringement claim; (v) Vim’s compliance with designs, specifications, or instructions provided by Customer where the infringement would not have occurred but for such compliance, or (vi) third party content supplied or transmitted by the Customer, an Authorized User or the Customer Application. If there is an Infringement Action relating to the Authorized User, or Provider, use of the Platform, or if, in Vim’s opinion, any application or component of the Platform is likely to become the subject of an Infringement Action, Vim may, at its discretion, (i) procure you the right to use the Platform, (ii) replace or modify the infringing components of the Platform with non-infringing equivalents that do not materially impair functionality, or (iii) terminate the Agreement. The indemnification provided for in this paragraph shall constitute the entire liability of Vim to indemnify you. The foregoing indemnification obligations do not apply to any liabilities, claims, or expenses arising out of Customer Application or a breach of any of your warranties. 

12.3 Indemnification by Customer. You will defend, indemnify, and hold Vim harmless against any and all liabilities, claims, demands, losses, costs and expenses, including reasonable attorney’s fees and litigation expenses, arising out of any third-party claim, action, or proceeding brought against Vim or relating to: (i) Customer Application and any data provided through it, and/or Customer Application Public Content (ii) end-users’ use of Customer Application or the data provided through it; (iii) any alleged infringement, violation, misappropriation of any third party rights, including intellectual property rights or privacy rights, by you or Customer Application; (iv) your use of the Vim OS SDK, in violation of this Agreement; (v) your breach of these Canvas Terms; or (vi) any unauthorized access or use of the Platform by you and/or your Authorized Users.

12.4 Indemnification Procedure. A party seeking indemnification shall promptly notify the other party of any such claim, action, or proceeding upon becoming aware of it. The indemnifying party hereunder may select counsel of its choosing. However, in the event that the indemnifying party does not timely act, then the indemnified party reserves the right, at the indemnifying party’s expense, to retain counsel and commence such defense. Each party agrees not to settle any matter involving an indemnity claim without the prior written consent of the other party, such consent shall not be commercially unreasonably withheld, conditioned, or delayed.

13. Exclusivity. Customer agrees that, for the duration of the Agreement, it shall not, directly or indirectly, offer, sell, or distribute the Customer Application to any Providers and/or potential end-users introduced to Customer and/or to the Customer Application, by Vim, except for such Providers and/or potential end-users with whom Customer had an existing relationship at the time of the introduction. This includes but is not limited to, offering or selling the Customer Application through any other online or offline platforms, websites, or third-party services. A breach of this Section shall be considered a material breach.

14. Miscellaneous.

14.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law.

14.2 Arbitration. Any and all disputes arising under or otherwise concerning this Agreement shall be submitted exclusively to arbitration administered by the American Arbitration Association (“AAA”), and not to any other venue or forum including without limitation a court of law. No type of dispute and no legal or fact issues, including without limitation any and all issues related to fraudulent inducement, are excluded from the scope of the foregoing arbitration requirement. Any such arbitration shall take place exclusively in Manhattan in New York City, New York before a single AAA arbitrator, who shall be selected pursuant to the AAA rules or by mutual agreement of the parties; provided, however, that in any event the arbitrator must be an attorney who is admitted to practice law in the State of New York. The arbitrator’s authority will include, without limitation, the authority to grant interim and permanent injunctive relief. The arbitrator will be bound by the limitation of liability provisions set forth in Section 12.1 of these Canvas Terms. The arbitration and oral and written communications precedent or ancillary thereto, along with the information therein (including without limitation, the allegations made by the parties thereto, evidence, discovery, technical reports, expert reports, interim dispute resolution measures taken with respect thereto, and any and all other statements given or information provided by third parties, along with any documentation submitted or exchanged in the course of the arbitration proceedings or related dispute resolution) (together “Confidential Arbitration Information”), shall be kept strictly confidential. Confidential Arbitration Information may only be disclosed to the AAA, the arbitrator, the parties to the arbitration, their respective attorneys, and any person working under the direction of the arbitration parties’ respective counsel and who is essential to the prosecution or defense of the arbitration proceedings, provided, however, that such person first agrees in writing to be bound by the confidentiality requirements. Notwithstanding the foregoing, a party may disclose Confidential Arbitration Information: (i) in compliance with a lawful order or process of a court of competent jurisdiction or governmental agency (provided, however, that the disclosing party provides immediate, advanced notice the other party so that it can seek relief from such order or process, at its sole discretion); (ii) to its attorneys, accountants, or advisors who have a need to know and are informed of and agree not to further disseminate such information or materials; or (iii) with the other party’s written consent. Any action relating to this Agreement, other than collection of outstanding payments, must be commenced within one year after the date upon which the cause of action accrued otherwise such cause of action or claim is permanently barred.

14.3 Class Action Waiver. Any claim you may have against Vim, including Vim’s past or present employees or agents, shall be brought individually and you may not join such claim with claims of any other person or entity or bring, join or participate in a class action against Vim. 

14.4 Headings. Section headings are for convenience only and shall not affect the meaning or interpretation of this Agreement. 

14.5 Severability. If any provision contained in this Agreement is determined to be unenforceable, then such provision will be severed and replaced with a provision which closely follows the intent of such provision which may be enforced, and the remaining provisions of this Agreement will remain in full force and effect. 

14.6 Changes to Terms. Vim reserves the right to change these Canvas Terms at any time by posting a new version of these Canvas Terms on https://getvim.com/documents/developers/ and changes will be effective upon the date specified on such page. Vim will provide you with notice of material changes that could be prejudicial to your rights or increase your responsibilities and, in such case, the updated Canvas Terms will become effective thirty (30) days following Vim’s notice. Your or your Authorized Users’ continued use of Vim Connect or the Services following such time that the changes become effective constitutes your acceptance of the updated Canvas Terms. If you do not agree to the updated Canvas Terms, you and any Authorized Users must discontinue using the Platform. 

14.7 Assignment. Customer may not assign this Agreement without Vim’s prior written consent, except for an assignment to any successor entity resulting from a merger, acquisition, or sale of substantially all of its assets or stock, provided that (a) you provide Vim with written notice of such assignment within ten (10) days and Vim will have the right to terminate this Agreement at its reasonable discretion following such assignment, and (b) such successor assumes all of Customer’s rights and obligations under the Agreement. 

14.8 Independent Relationship. The parties hereto are independent contractors, and neither Vim nor Customer is an agent, representative, employer, employee, or partner of the other. 

14.9 No agency. Neither Party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other Party, whether express or implied or to bind the other Party in any respect whatsoever. 

14.10 No third-party beneficiary rights. The Agreement controls the relationship between the parties hereto and does not create any third-party beneficiary rights.

14.11 Entire Agreement. The Agreement constitutes the entire agreement between the parties and supersedes all prior representations, understandings, undertakings or agreements (whether oral or written and whether expressed or implied) of the parties with respect to the subject matter hereof. In the event of any conflict or inconsistency between these Canvas Terms and any Order Form signed between you and Vim, the Order Form shall prevail. A mutually signed written agreement between the parties may be used to amend any specific provisions of these Canvas Terms and when the provisions to be amended are specifically so documented thereon. No verbal agreement, representation, or amendment will be binding on either you or Vim.

14.12 No waivers. Failure to insist on strict performance of any provisions of this Agreement will not constitute a waiver of any breach or failure of performance and no waiver of any provision of the Agreement will be valid unless in writing and acknowledged in writing or electronically by the waiving party.

14.13 Notices. Any notice to be given pursuant to the Agreement must be in writing sent by electronic transmission to the Customer at the electronic mail address included in Vim Console or to Vim at [email protected]. Any notice given by electronic mail shall be deemed given when sent to the correct electronic mail address if sent before 5:00 pm EST on a business day or, if sent after 5:00 EST, the next business day.  

14.14 Survival. Any provisions of this Agreement that by their nature are intended to survive any termination or expiration of the Agreement shall survive. 

14.15 Force majeure. Vim will not be liable for any delay to perform under this Agreement to the extent such delay or failure results from circumstances or causes beyond the reasonable control of Vim.