Veloxity Terms of Service
VELOXITY TERMS OF SERVICE
These Terms of Service define the terms by which subscribers may use the software platform and the accompanying software services and are an agreement between you (the “Subscriber’) and VELOXITY, LLC (“Veloxity”), who may each individually be referred to as a ‘Party” or collectively as the “Parties.” By subscribing to use the software platform and the software services, Whether by CLICKING A CHECK BOX INDICATING YOUR ACCEPTANCE, OR BY EXECUTING A SUBSCRIPTION FORM THAT REFERENCES THESE TERMS OF SERVICE, you expressly acknowledge that you have read, accept, and agree to be bound by these Terms of Service (HEREAFTER THE “AGREEMENT” OR THESE “TERMS OF SERVICE”), as well as any applicable laws. THIS AGREEMENT IS EFFECTIVE BETWEEN SUBSCRIBER AND VELOXITY AS OF THE DATE OF SUBSCRIBER’S ACCEPTANCE OF THESE TERMS OF SERVICE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THESE TERMS OF SERVICE. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
VELOXITY’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH VELOXITY’S PRIOR WRITTEN CONSENT. IN ADDITION, THE SOFTWARE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
(a) Access Rights. For the Trial Period, the Term or the Renewal Period (each of which are defined below), Veloxity grants to Subscriber the non-exclusive, non-transferable right to permit the designated number of Authorized Users (i) to access, use, display and run the Software Services and (iii) use and display the Documentation about the Software Platform and Add-On Services. For the purposes of this Agreement, the below terms shall be defined as follows:
(i) “Authorized User” shall be defined as (A) in the case of any individual subscriber, such individual subscriber, or (B) in the case of a company, any employee or independent contractor, in each case under the control of Subscriber, specifically designated by Subscriber to access, use, display, and run the Software Services.
(ii) “Documentation” shall be defined as any written materials or instructions about the use of the Software Platform and Software Services provided by Veloxity via an online-knowledge base or made available by Veloxity to Subscriber and/or Authorized Users.
(iii) “Software Services” shall be defined as the Software Platform, Add-On Services and any related services including but not limited to hosting, maintenance technical support, and routine back-up services which are made available by Veloxity to Subscriber under this Agreement.
(iv) “Software Platform” shall be defined as the current version of the core customer relationship management functionality made available by Veloxity to all subscribers as described in the Documentation, which is developed, maintained, and hosted by Veloxity, along with any updates, upgrades, modifications, or improvements made thereto.
(v) “Add-On Services” shall be defined as any one or more modules or other Software Services described below in Section 2(b) comprising functionality or services not included in the Software Platform, which are made available by Veloxity to Subscriber for an additional charge.
(b) Adding and Decreasing Authorized Users. In the event Subscriber seeks to add additional Authorized Users beyond the number of Authorized Users designated by Subscriber during the Term or applicable Renewal Period, the additional Authorized Users required may be purchased upon renewal for the Renewal Period. Subscriber may decrease the designated number of Authorized Users at any time via the billing section of Software Platform. In the event Subscriber’s usage of the Software Services exceeds any usage parameters applicable to the Software Services subscription purchased by Subscriber, such as limitation on the number of Authorized Users or Subscriber seeks to add additional Authorized Users beyond the number of Authorized Users designated by Subscriber during the Term or applicable Renewal Period, Veloxity shall have the right to adjust any subscription fee upwards and the subscription fee will be pro-rated accordingly and any excess subscription fee amount previously paid will be applied to the subscription fee due and payable for the next Term or Renewal Period. For the avoidance of doubt, there shall be no downward adjustment of any subscription fees. Subscriber shall have the right to assign and reassign Authorized Users in its sole and absolute discretion.
(c) Restrictions. Subscriber and its Authorized Users may not share, distribute, resell, rent, lease, transfer, create derivative works of the Software Services, or otherwise permit any third party to access, use, or display the Software Services or Add-On Services. The Software Services and any modules comprising Add-On Services contain Veloxity’s trade secrets, and in order to protect those trade secrets, Subscriber and its Authorized Users agree not to take any action to reverse engineer, compile, translate, disassemble, copy, or create derivative works of the Software Services or Add-On Services, in whole or in part, nor to permit any third party to do so. Any use of the Software Services by Subscriber or Authorized User that exceeds the scope of the subscription shall constitute a breach of these Terms of Service.
(d) Acknowledgements. Subscriber acknowledges and agrees that subscriptions are in no way contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Veloxity regarding future functionality or features. Veloxity reserves the right at any time to alter or discontinue any or all features, functionality, license terms, and other characteristics of the Software Services; provided, however, that in the event that any such alterations materially limit the features or functionality of the Software Services, Veloxity shall use commercially reasonable efforts to provide Subscriber with advanced notice thereof. Any subsequent upgrade, enhancement or other change to the Software Services shall be owned by Veloxity and subject to the terms of this Agreement.
2. SERVICES MADE AVAILABLE TO SUBSCRIBERS
(a) Software Platform Services. Subscriber and Authorized Users shall have access to all the functionality comprised in Veloxity’s Software Platform as described in the Documentation and as applicable to Subscriber’s Software Services subscription, as well as to any applicable improvements, updates, or enhancements released thereafter as they are made available to subscribers in Veloxity’s sole discretion.
(b) Add-On Services. Subscriber may elect to subscribe to modules external to the Software Platform and other Software Services, which are made available by Veloxity to subscribers for an additional charge.
(c) Hosting and Maintenance Services. Veloxity will host and maintain the Software Platform and any Add-On Services for use by Subscriber and Authorized Users in accordance with the Service Level Agreement [https://www.veloxity.com/service-level-agreement/] incorporated herein by reference.
(d) Technical Support Services. Veloxity makes available technical support technicians for certain paid editions of the Software Services by telephone during the hours of 9 a.m. through 5 p.m. EST, Monday through Friday, at (256) 254-5996 and community forums https://support.veloxity.com/hc/en-us/community/topics.
3. THIRD-PARTY SERVICE PROVIDERS
Subscriber acknowledges and agrees that Veloxity shall have the right to rely in its sole and absolute discretion on third-party service providers to provide any part of the Software Services, which third parties Veloxity may elect to replace at any time for any reason without notice to Subscriber.
4. SUBSCRIBER AND AUTHORIZED USER RESPONSIBILITIES
(a) Acceptable Use Policy. Subscriber and Authorized Users will be responsible for complying with the terms of Veloxity’s Acceptable Use Policy [https://www.veloxity.com/acceptable-use-policy/] incorporated herein by reference.
(b) Maintenance of Third-Party Software Rights. The Software Services may link, interface, and integrate with third-party software applications and websites that are not operated or controlled by Veloxity (each, a “Third-Party Application”). The Software Services may make available third-party functionality through integrations with Third-Party Applications. To utilize this functionality, Subscriber will be responsible for maintaining an active software license or subscription as required to obtain access to the applicable features and functionality. All such Third-Party Applications shall remain the property of their third-party providers. Subscriber hereby acknowledges and agrees that Veloxity is not responsible for the content or practices of the Third-Party Applications. Any links to or content from Third-Party Applications in the Software Services are provided for Subscriber’s convenience only. Subscriber’s reliance on any Third-Party Application is at Subscriber’s own risk; Veloxity does not endorse or warranty any Third-Party Application, including any Third-Party Application linked to, or interfaced or integrated with, the Software Services. Veloxity reserves the right to update or remove any functionality available through the Software Services at any time for any reason. Subscriber is solely responsible for any required third-party account setup or fees levied by any Third-Party Applications for using their services. It shall be Subscriber’s responsibility to, and Subscriber shall, ensure that the use of the Software Services in connection with any such Third-Party Applications complies with any applicable terms of service. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, SUBSCRIBER SHALL BE SOLELY RESPONSIBLE FOR ITS RELATIONSHIP WITH ANY THIRD-PARTY APPLICATION, INCLUDING WITHOUT LIMITATION SUBSCRIBER’S INTERACTION WITH ANY SUCH THIRD-PARTY APPLICATION THROUGH THE SOFTWARE SERVICES. VELOXITY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY INTERACTION WITH ANY THIRD-PARTY APPLICATION, WHETHER THROUGH THE SOFTWARE SERVICES OR OTHERWISE, BY OR ON BEHALF OF THE SUBSCRIBER. VELOXITY SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY PAYMENT OBLIGATIONS THAT ARISE AS A RESULT OF ANY SUCH INTERACTION, ANY LIABILITY THAT ARISES AS A RESULT OF ANY SUCH INTERACTION (INCLUDING WITHOUT LIMITATION UNDER ANY APPLICABLE TERMS OF SERVICE), OR ANY RELATIONSHIP THAT EXISTS OR COMES TO EXIST BETWEEN SUBSCRIBER AND ANY THIRD-PARTY APPLICATION PROVIDER.
(c) Removal of Content. If Subscriber receives a notice from any third party that any of Subscriber’s content must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use Policy, Subscriber will promptly do so. If Subscriber does not take required action in accordance with the above, Veloxity may terminate the Software Services. If requested by Veloxity, Subscriber shall confirm such deletion and discontinuance of use in writing and Veloxity shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Veloxity is required by any third-party rights holder to remove any of Subscriber’s content or receives information that any such content provided to Subscriber may violate applicable law or third-party rights, Veloxity may discontinue Subscriber’s access to such content through the Software Services.
(d) Subscriber Account. Subscriber is solely responsible for maintaining the confidentiality of Subscriber’s account (including any access credentials thereto) and for all use of such account. Subscriber shall not permit any third party to use the Software Services through Subscriber’s account. Notwithstanding the foregoing, Subscriber shall be solely responsible for all use of the Software Services under Subscriber’s account, whether or not such use was in fact performed by Subscriber. Subscriber hereby agrees that the act or omission of any Authorized User of Subscriber’s account shall be deemed to be the same as if performed by Subscriber.
(e) Other. Subscriber will ensure that (i) Subscriber and its Authorized Users fully comply with these Terms of Service; (ii) all data is legally possessed and legally acquired; (ii) Subscriber and its Authorized Users use best efforts to prevent unauthorized access to or use of Software Services and content; (iii) Subscriber promptly notifies Veloxity of any actual or suspected unauthorized access or use of the Software Services by an Authorized User; (iv) Subscriber and its Authorized Users use all Software Services and content only in accordance with these Terms of Service and applicable laws and government regulations; (v) no access to the Software Services is provided to any party other than Subscriber or Authorized Users; (vi) the Software Services are not included in any service bureau or outsourcing offering; (vii) neither Subscriber or any Authorized User interferes with or disrupts the integrity or performance of any Software Services or third-party data contained therein; (viii) neither Subscriber nor Authorized Users will permit any third party to gain unauthorized access to any Software Services, the Software Platform, or any data or content; (ix) no third party uses any Software Services to access or use any of Veloxity intellectual property except as permitted under these Terms of Service; (x) neither Subscriber nor Authorized Users modify, copy, or create derivative works of any content, Documentation, or other intellectual property; (xi) neither Subscriber nor Authorized Users copy the Software Services or any information made available thereon except as permitted herein; (xii) except to the extent the following limitation is prohibited by applicable law, neither Subscribers nor Authorized Users disassemble, reverse engineer, or decompile the Software Services in order to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Software Services, (3) copy any ideas, features, functions or graphics of the Software Services, or (4) determine whether any feature of the Software Services is within the scope of any patent; (xiii) neither Subscribers nor Authorized Users transmit any virus or programming routine intended to damage, surreptitiously intercept, or expropriate any system or data; (xiv) neither Subscriber nor Authorized Users upload any file containing any back door, time bomb, Trojan horse, worm, virus, malware, or similar malicious code; and (xv) neither the Subscriber nor its Authorized Users violate the intellectual property or other rights of any third party.
(f) Subscriber Data. In connection with this Agreement, Veloxity may Process certain data (whether through the Software Services or otherwise) solely on behalf of Subscriber (“Subscriber Data”). Subscriber represents, warrants, and covenants that: (i) it has (and will have) Processed, collected, and disclosed all Subscriber Data in compliance with applicable law and provided any notice and obtained all consents and rights required by applicable law to enable Veloxity to lawfully Process Subscriber Data as permitted by this Agreement; (ii) it has (and will continue to have) full right and authority to make the Subscriber Data available to Veloxity under this Agreement; and (iii) Veloxity’s Processing of the Subscriber Data in accordance with this Agreement or Subscriber’s instructions does and will not infringe upon or violate any applicable law or any rights of any third party. Without limitation of the foregoing, where applicable, Subscriber shall provide any notice and obtain any consent from individuals required by applicable law (including without limitation the Telephone Consumer Protection Act of 1991, together with any regulations promulgated thereunder) to enable Veloxity to send email and/or text messages on Subscriber’s behalf to such individuals. The parties hereby enter into the Data Processing Addendum, available at [https://www.veloxity.com/data-processing-addendum/] (as amended from time to time, the “DPA”), which is incorporated into this Agreement by reference. “Process” (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including without limitation collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
5. FEES AND PAYMENT
(a) Subscription Fees. For the Term and any Renewal Periods, Subscriber shall pay to Veloxity the subscription fees for the designated number of Authorized Users. All payments shall be non-refundable.
(b) Payment. Payment for all subscription fees due and payable shall be due in advance of the commencement of the applicable Term or Renewal Period, and shall be payable in US Dollars. Subscriber will provide Veloxity with valid and updated credit card information, or with a valid purchase order with the necessary information to perform ACH transfers. Subscriber authorizes Veloxity to charge such credit card or to perform ACH transfer as designated by Subscriber in advance of the applicable Term or Renewal Period. Subscriber is responsible for providing complete and accurate billing and contact information to Veloxity and notifying Veloxity of any changes to such information. To the extent permitted by applicable law, all charges under this Agreement are non-refundable. Failure to pay any charges when due and payable shall constitute a material breach of these Terms of Service.
(c) Overdue Charges. If any invoiced amount is not received by Veloxity by the due date, then without limiting Veloxity rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
(d) Suspension. If any charge owing by Subscriber under these Terms of Service is overdue, Veloxity may suspend all Software Services until such amounts are paid in full.
(e) Taxes and Other Fees. Veloxity subscription 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”). Subscriber is responsible for paying all Taxes incurred hereunder. If Veloxity has the legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section 5, such Taxes will be collected along with the subscription fees for the applicable Term or Renewal Period in advance of the commencement of the applicable Term or Renewal Period.
6. TERM AND TERMINATION
(a) Trial Period. Veloxity may elect (in Veloxity’s sole discretion) to make the Software Services (or a restricted version thereof) available to Subscriber on a limited trial basis free of charge or at a fee for the sole purpose of facilitating Subscriber’s internal evaluation and testing of the Software Services, until the earlier of (i) thirty (30) days following the date Subscriber signs up for a trial subscription, or (ii) the commencement date of any purchased Software subscriptions ordered by Subscriber (“Trial Period”). Veloxity reserves the right to modify, cancel and/or limit the limited trial of the Software Services without notice at any time. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT TO THE CONTRARY, DURING THE DESIGNATED TRIAL PERIOD, THE SOFTWARE SERVICES MADE AVAILABLE TO SUBSCRIBER ARE PROVIDED ON AN “AS-IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, WITHOUT ANY WARRANTY. ANY DATA SUBSCRIBER ENTERS INTO THE SOFTWARE DURING SUBSCRIBER’S LIMITED TRIAL MAY BE PERMANENTLY LOST UNLESS SUBSCRIBER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.
(b) Term Renewal. The subscription shall commence on the date Subscriber signs up for a subscription and will remain in effect for the subscription period designated (the “Term”). Upon expiration of the Term, the subscription will automatically renew at Veloxity’s then-current applicable fees for successive subscription periods (each period is a “Renewal Period”) to the extent permitted by applicable law.
(c) Termination. Subscriber may terminate its account at any time by providing written notice to Veloxity at [[email protected]] (provided that, in the event Subscriber seeks to terminate any pre-paid Software Services subscription, such termination shall only become effective from and after the expiration date of Subscriber’s then-current Software Services subscription). Veloxity may, in its sole discretion, for any reason or no reason, terminate this Agreement or any account (or any part thereof, including any Software Services subscription attributable to such account). To the extent permitted by applicable Law, with respect to any paid Software Services subscription, Subscriber agrees and acknowledges that, in the event Veloxity terminates this Agreement under this Section 6 Subscriber shall not be entitled to any refund for any amounts which were pre-paid on behalf of Subscriber’s account prior to any termination of Subscriber’s account. By accessing Subscriber’s account, Subscriber acknowledges that, although under certain circumstances, users located in the European Economic Area may have a right to cancel prepaid account subscriptions within 14 days of signing up for, upgrading to, or renewing an account, PERFORMANCE OF THIS AGREEMENT HAS BEGUN UPON ACCESSING THE SOFTWARE ACCOUNT AND SUBSCRIBER THEREBY LOSES ANY RIGHT OF WITHDRAWAL SUBSCRIBER MAY HAVE UNDER APPLICABLE LAW, INCLUDING APPLICABLE EUROPEAN UNION LAW, IN RESPECT OF THE PURCHASE OF ANY DIGITAL CONTENT HEREUNDER, AND SUBSCRIBER THEREBY WAIVES ANY RIGHT SUBSCRIBER MAY HAVE TO A REFUND OF ANY AMOUNTS WHICH WERE PRE-PAID ON BEHALF OF SUBSCRIBER’S ACCOUNT PRIOR TO ANY TERMINATION OF SUBSCRIBER’S ACCOUNT.
(d) Termination Process. Upon any expiration or termination of the subscription, Veloxity shall have the right to immediately and permanently suspend the performance of all Software Services. The following terms and conditions shall survive any expiration or termination of a Trial Period, Term, or Renewal Period: Sections 1(c), 5, 4(f), 6(d), 6(f), 7, 8, 9(c), and 10-13.
(e) Force Majeure. Except with respect to Subscriber’s payment obligations under this Agreement, the failure of either party to perform any obligation by reason of “acts of God,” acts of governments, terrorism, riots, wars, accidents, or deficiencies in materials or transportation, or other causes of any nature beyond its reasonable control shall not be deemed to be a breach of these Terms of Service, provided that the nonperforming or delayed Party provides to the other Party written notice of the existence and nature of such reason for the nonperformance and delay, and resumes performance immediately upon the elimination of the relevant force majeure. In the event that the force majeure event continues for more than thirty (30) days, then the non-delayed Party may terminate the subscription.
(f) Data Expungement. All Subscriber Data uploaded by Subscriber to the Software Services will be purged (i) immediately following the expiration of the Trial Period and (ii) within fourteen (14) days following expiration or termination of any Term or Renewal Period.
7. INTELLECTUAL PROPERTY AND DATA RIGHTS
(a) Ownership of Software Services, Software Platform, Add-On Services & Documentation. Veloxity shall own and retain full ownership of all right, title, and interest in and to the Software Services, Software Platform, Add-On Services, and Documentation. Subscriber agrees not to remove any trademark, copyright, or other proprietary notices on the Documentation as delivered, and to reproduce all such notices on and in all authorized copies.
(b) Ownership of Logos and Trademarks. Subscriber acknowledges and agrees that Veloxity shall own and retain ownership of all right, title, and interest in and to the logos and trademarks used by Veloxity in conjunction with the marketing and advertising of the Software Platform and Software Services. Veloxity acknowledges and agrees that Subscriber owns all right, title, and interest in and to the logos and trademarks used by Subscriber in conjunction with the marketing and advertising of Subscriber’s business.
(c) Ownership of Subscriber Data. Subscriber shall own all right, title, and interest in the Subscriber Data generated by or imported into the Software Services.
(d) Ownership of Intellectual Property Arising from Subscriber or Authorized User Feedback. Subscriber and Authorized Users grant to Veloxity a worldwide, perpetual, irrevocable royalty-free license to use and incorporate into the Software Services any and all intellectual property arising from any suggestion, enhancement request, recommendation, correction, or other feedback regarding the Software Platform or Software Services.
(a) Definition of Confidential Information. “Confidential Information” means all proprietary, non-public information disclosed by either party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, including but not limited to Subscriber Data (which shall be Subscriber’s Confidential Information), the Software Services (which shall be Veloxity’s Confidential Information), the terms and conditions of this Agreement (including pricing) (which shall be Veloxity’s Confidential Information), business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, 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 breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without access to Disclosing Party’s Confidential Information. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” Section 8 apply to Confidential Information exchanged between the parties in connection with the evaluation of the Software Services.
(b) Protection of Confidential Information. As between the Subscriber and Veloxity, each party retains all ownership rights in and to its Confidential Information. Each Receiving Party shall hold in confidence the Confidential Information of the Disclosing Party. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its employees, independent contractors, legal counsel, and accountants who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.
(c) Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. Disclosures made under this paragraph shall not otherwise exempt the disclosed Confidential Information from protection under this Agreement.
9. REPRESENTATIONS, WARRANTIES & DISCLAIMERS
(a) Representations. Each party warrants and represents that it has validly entered into this Agreement and has the legal power to do so.
(b) Subscriber Warranty. Subscriber warrants and represents that Subscribers and Authorized Users will perform all the responsibilities set forth in Section 4 above.
(c) Disclaimer of Other Warranties. THE SOFTWARE PLATFORM, ADD-ON SERVICES, AND SOFTWARE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. USE AND RELIANCE ON THE SOFTWARE PLATFORM, ADD-ON SERVICES, AND THE SOFTWARE SERVICES ARE AT SUBSCRIBER’S OWN RISK. VELOXITY EXPRESSLY DISCLAIMS ANY WARRANTY THAT USE OF THE SOFTWARE SERVICES, SOFTWARE PLATFORM, AND/OR ADD-ON SERVICES, OR ACCESS TO THE SOFTWARE SERVICES WILL BE CONTINUOUS, UNINTERRUPTED, BUG-FREE, ERROR-FREE, VIRUS-FREE, FREE OF DEFECTS, FREE OF TECHNICAL PROBLEMS, OR THAT THEY WILL MEET ALL OF SUBSCRIBER’S NEEDS. VELOXITY ALSO EXPRESSLY DISCLAIMS ANY WARRANTY REGARDING THE GOODS OR SERVICES PROVIDED BY ANY THIRD PARTY.
WITH THE EXCEPTION OF THE SUBSCRIBER WARRANTY STATED IN SECTION 9(b) ABOVE, THE PARTIES EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE PLATFORM, ADD-ON SERVICES, AND/OR SOFTWARE SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE OR SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. VELOXITY EXPRESSLY DISCLAIMS THE VELOXITY WARRANTY DURING THE TRIAL PERIOD. EXCEPT TO THE EXTENT OTHERWISE SET FORTH HEREIN, VELOXITY DOES NOT WARRANT THAT ALL ERRORS, BUGS, OR DEFECTS CAN OR WILL BE CORRECTED OR THAT THE SOFTWARE PLATFORM, ADD-ON SERVICES, OR SOFTWARE SERVICES WILL OPERATE BUG-FREE, ERROR-FREE, CONTINUOUSLY, OR UNINTERRUPTED
Subscriber shall defend, indemnify, and hold harmless Veloxity and its members, managers, officers, employees, independent contractors, representatives, agents, and third-party advisors against any claim, loss, liability, damage, or expense (including reasonable attorneys’ fees) arising from (a) any acts or omissions by Subscriber or an Authorized User, including any use or misuse of data uploaded to the Software Services and/or the Software Platform, whether by an Authorized User or by any third-party subscriber or authorized user, (b) any breach of this Agreement by Subscriber or any Authorized User, including any breach by Subscriber or any Authorized User of Section 4 above; (c) any misappropriation of trade secrets by Subscriber or an Authorized User; (d) any infringement by Subscriber or Authorized User of intellectual property in the Software Services, Software Platform, or Add-On Services, the logos or trademarks, content, or any third-party intellectual property rights; (e) any failure to make any payment due and payable pursuant to these Terms of Service; or (f) any violation of any applicable laws or regulations of any state, federal, or international government or regulatory agency.
11. LIMITATION OF LIABILITY
(a) Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF VELOXITY EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY SUBSCRIBER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM OUT OF WHICH THE LIABILITY AROSE. NOTWITHSTANDING THE FOREGOING, VELOXITY SHALL HAVE NO LIABILITY UNDER THIS AGREEMENT WITH RESPECT TO ANY DAMAGES, LIABILITIES, OR CLAIMS ARISING DURING THE TRIAL PERIOD. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
(b) Exclusion of Consequential and Related Damages. IN NO EVENT WILL VELOXITY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF ITS REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12. CLASS ACTION WAIVER
SUBSCRIBER AND VELOXITY EACH EXPRESSLY WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT (A) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEY’S FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THESE TERMS OF SERVICE); AND (B) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
13. GENERAL PROVISIONS
(a) Entire Agreement and Order of Precedence. These Terms of Service (including the DPA) represent the entire agreement between Veloxity and Subscriber regarding the use of the Software Platform and/or Software Services and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
(b) Modifications. Veloxity reserves the right, at its sole discretion, to change, modify, add, or remove portions of the Terms of Service at any time by posting such changes on the Veloxity Website. Please check these Terms of Service periodically for changes. Continued use of the Software Services after such changes have been posted as provided above constitutes binding acceptance of such changes. Such amended Terms of Service will automatically be effective upon the earlier of (i) continued use of the Software Services, or (ii) 30 days from posting of such modified Terms of Service on or through the Software Platform.
(c) Export Compliance. The Software Platform, Software Services, content made available thereon, other Veloxity technology, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Veloxity and Subscriber each represents that such party is not named on any U.S. government denied-party list. Subscriber will not permit any Authorized User to access or use the Software Services or Content in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
(d) Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with these Terms of Service. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
(e) Headings for Convenience Only. The division of these Terms of Service into articles and sections is for convenience of reference only and shall not affect the interpretation or construction of the Terms of Service or this Agreement.
(f) Relationship of the Parties. The parties are independent contractors. These Terms of Service do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
(g) Waiver. No failure or delay by either party in exercising any right under these Terms of Service will constitute a waiver of that right.
(h) Severability. If any provision of these Terms of Service is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of these Terms of Service will remain in effect.
(i) Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign its rights under these Terms of Service in its entirety without the other party’s consent to a successor entity in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate the Agreement with the other party upon written notice. In the event of such a termination, Veloxity will refund to Subscriber any prepaid fees covering the remainder of the Term or Renewal Period. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
(j) Jurisdiction and Venue. All disputes or controversies arising out of or in connection with this Agreement and its interpretation or performance, shall be subject to the venue and jurisdiction of the appropriate state and federal courts located in York County, PA and the corresponding appellate courts.
(k) Notices. All notices provided in connection with these Terms of Service will be in writing and will be delivered by (i) certified or registered mail, postage prepaid and return receipt requested or (ii) courier and will be deemed effective upon the second business day of mailing. Billing-related notices to Subscriber will be delivered electronically to the designated billing contact and email address for Subscriber. Notices by mail shall be addressed (i) in the case of Subscriber, to the address designated by Subscriber, and (ii) in the case of Veloxity, to 2 South George St, York, PA 17401, U.S.A., Attn: General Counsel.