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Terms and Conditions
This Services Agreement (“SA”) is a legal agreement between End User (as defined below) and Velocitor Solutions, LLC (“Velocitor”). This SA governs all use of Velocitor’s range of applicable services, software and any associated documentation, both online and offline as further defined in this SA.
By registering for, downloading, or otherwise using the Services, End User consents to all of the terms and conditions set forth in this SA. If End User does not agree to any of the terms of this SA, End User is not permitted to use the Services.
Velocitor reserves the right to modify the terms of this SA from time to time and shall post the most current version where it can be readily viewed within the Services. It is the responsibility of End User to check and stay informed of any changes to this SA. End User’s continued use of the Services following modification of this SA shall constitute consent to the modified SA.
1. DEFINITIONS
“Account” means the account located upon the Infrastructure maintained by End User in order to access the Services.
“Device” means servers, workstations, computers or any mobile devices upon which or through which the Services are used and/or installed.
“Infrastructure” means the technical systems, hardware and all connected devices of Velocitor or its third-party suppliers.
“Order” means the agreement to utilize the Services as between End User and Velocitor.
“Services” means the various services and components thereof, software, any documentation both on and offline, as well as any modifications, derivatives, updates or upgrades as may be offered by Velocitor from time to time, and which are utilized by the End User. A End User may choose to utilize one or more Services as may be offered by Velocitor from time to time.
“End User” means an individual or entity (including, but not limited to, that entity’s firm, company, partners, associates, employees, agents and contractors) to which Services are provided by and as agreed to by Velocitor.7
2. USE OF SERVICES
Subject to the terms and conditions of this SA, End User may use the Services only in accordance with any written communication by Velocitor to End User, including any then-current usage documentation as posted and readily accessible in the relevant Service. Velocitor Solutions shall make commercially reasonable efforts to provide the Services to End User. This SA applies to the End User who uses the Services or that installs, otherwise uses or permits the installation of the Services on one or more platforms as owned, operated or overseen by End User to facilitate the provision of Services. Throughout the Service Period, unless terminated in accordance with the terms herein, Velocitor grants End User the following rights:
2.1 Service Period
The Service Period begins at the time the End User first accesses Services (other than on a trial basis) and thereafter continues in effect until the date of termination as set forth hereinafter. A Service Period shall terminate in whole or in part, due to (i) End User cancellation or (ii) breach of any of terms of this SA.
3. GRANT OF RIGHT OF USE
The Services are licensed and not sold. During a Service Period, Velocitor grants End User a revocable, limited, non-transferable, non-exclusive license to access and use the Services pursuant to the terms of this SA. This SA covers any updates, new releases or enhancement(s) of the Services, as may be available to End User from time to time.
4. ACCOUNT; SECURITY
To access and use the Services, End User must maintain an account that is protected by a username and password (hereinafter “Account”) and End User must keep any passwords and other Account details secret. End User agrees to provide Velocitor with accurate and complete information when registering for an Account and at all times thereafter.
End User acknowledges and agrees that End User is responsible for providing the following: (i) all equipment that shall be necessary to access the Internet; (ii) End User’s own access to the Internet; and (iii) payment of all telephone or other fees associated with such access.
End User is solely responsible for access to or sharing and use of its Account. Velocitor shall not be liable for any loss or damage arising from any access to, content in, or sharing and use of End User’s Account. In the event that End User believes or suspects there has been any unauthorized access to the Account, End User shall immediately notify Velocitor.
5. SUPPORT
During the Service Period, Velocitor Solutions will provide End User with support for the Services (hereinafter “Support”) twenty-four (24) hours a day and seven (7) days a week including all standard holidays recognized in the United States of America. At Velocitor’s sole determination, Support shall consist of: (i) telephone or electronic support to End User in order to help End User with the use of the Services, (ii) correcting problems with the Services and / or (iii) supplying extensions, enhancements and other changes that Velocitor may make to the Services from time to time and which is made publicly available, without additional charge, to other End Users of the Services that are entitled to Support.
6. END USER’S CONDUCT
End User must comply at all times with any and all applicable local, state, federal and international laws and treaties.
7. RESTRICTIONS
Except as otherwise expressly provided under this SA, End User shall have no right and End User shall not permit any third party to: (i) harm, disrupt or otherwise engage in activity that diminishes the Velocitor brand, Services, or Infrastructure; (ii) use the Services in a manner that shall result in excessive bandwidth or storage or shall exceed the Permitted Usage as solely determined by Velocitor; (iii) transfer, assign or sublicense the limited rights granted to End User in this SA to any other person or entity, or use the Services other than as authorized; (iv) make error corrections to or otherwise modify or adapt the Services or decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming; or (v) attempt to alter, circumvent or provide the method or means to circumvent any disabling mechanism in the Services; or (vi) use the Services in any manner not expressly authorized herein; or (vii) alter, remove or fail to reproduce any proprietary notices from the Services; or (viii) misrepresent any person or entity’s identity, impersonate any person or attempt to gain access to any Account, the Infrastructure or the networks or property of any third person, without authorization.
8. SERVICE UPDATES
Velocitor agrees to provide to End User from time to time such software maintenance updates as it deems necessary and appropriate in order to provide the most optimal Services to End User.
9. INTELLECTUAL PROPERTY RIGHTS
The Services are protected by world-wide copyright, trademark, patent or other intellectual property laws and treaties and belong exclusively to Velocitor or third parties. End User acknowledges (i) that rights in the Services are licensed and not sold to End User; (ii) that End User shall have no rights or title in or to the Services (including any content provided therein) other than the right to use them in accordance with the terms of this SA; and (iii) that third-party software may be incorporated into the Services provided by Velocitor. Velocitor, its licensors and any applicable third parties, own all title, copyright, and other intellectual property rights in and to the Services. The Services, in all formats existing, are a trade secret of and proprietary to Velocitor, its suppliers and/or licensors. End User shall not disclose the confidential aspects of the Services to unauthorized third parties.
10. DATA PROTECTION
10.1 General Data Protection
Each party shall comply with its respective obligations under applicable data protection laws. Neither party shall do any act that puts the other party in breach of its obligations as per this Section, nor shall anything in this SA be deemed to prevent any party from taking any action it reasonably deems necessary to comply with data protection laws. End User shall at all times comply with the requirements of data protection laws and End User shall fully indemnify Velocitor, its licensors and suppliers against any loss, damages, liability and costs (including attorney’s fees) incurred by Velocitor, a licensor or supplier as a result of any breach of data protection laws by End User.
Velocitor shall comply with requests for information from legitimate judicial, legal or regulatory authorities or pursuant to any court order or subpoena, discovery request or other lawful process that may be received. Velocitor may comply with these subpoenas or court orders with or without notice to End User.
11. DATA RECORDING, USAGE, STORAGE AND OTHER TERMS
11.1 Data Transmission and Storage
The End User acknowledges and agrees that Velocitor is dependent on the performance of the third parties providing data transmission and storage services, and therefore cannot warrant:
a) That the data will be available on a continuous basis and at any place within an area due to gaps in coverage, suspension of service for maintenance reasons, security, per the instruction of competent authorities, etc.;
b) The speed at which the data is transmitted.
12. DISCLAIMER OF WARRANTIES
THE SERVICES ARE PROVIDED TO END USER ON AN AS IS AND AS IS AVAILABLE BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VELOCITOR, ITS LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WARRANTIES FOR LATENT OR HIDDEN DEFECTS. VELOCITOR, ITS LICENSORS AND SUPPLIERS DO NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SERVICES WILL MEET ALL END USER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. FURTHERMORE, VELOCITOR, ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES PROVIDED WITH RESPECT TO ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IF THIS EXCLUSION IS NOT PERMITTED BY LAW, VELOCITOR, ITS LICENSORS AND SUPPLIERS LIMIT ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES AS TO DURATION TO THE REPAIR OR REPLACEMENT REMEDY AS DETERMINED BY VELOCITOR IN ITS SOLE DISCRETION.
13. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VELOCITOR, ITS LICENSORS, SUPPLIERS OR ITS AGENTS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER INCLUDING DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, UNDER ANY THEORY OF LAW OR FAULT OF VELOCITOR, ITS LICENSORS, SUPPLIERS OR ITS AGENTS, AND EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. VELOCITOR EXCLUDES ANY LIABILITY FOR FAILURE TO REPAIR ANY SERVICES. NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY THAT VELOCITOR, ITS LICENSORS, SUPPLIERS OR AGENTS SHALL INCUR HEREUNDER SHALL BE LIMITED TO THE ACTUAL PRICE PAID BY END USER FOR THE RESPECTIVE SERVICE FOR THE ONE MONTH PERIOD EMBRACING THE DATE WHEN THE APPLICABLE CLAIM AROSE.
14. EQUITABLE RELIEF
The Parties agree that irreparable damage would occur if any provision of this SA were not performed in accordance with the terms hereof and that the parties shall be entitled to equitable relief, including injunctive relief or specific performance of the terms hereof (without any requirement to post bond or guarantee), in addition to any other remedy to which they are entitled at law or in equity.
15. INDEMNIFICATION
End User agrees to indemnify, defend and hold Velocitor, its licensors, suppliers and its agents harmless from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs and expenses (including attorney’s fees, expert fees and out-of-pocket expenses) in connection with (i) End User’s use of the Services, (ii) End User’s violation of the terms of this SA, (iii) End User’s violation of any third-party rights, including any intellectual property rights, (iv) End User’s misuse or fraudulent use of credit and debit cards, (v) any claims that the Services or any party thereof were exported or otherwise shipped or transported by End User in violation of applicable laws, rules and regulations, or (vi) any claim of misuse of the Services, including, but not limited to, any claim that End User is storing illegal files or data in its Account.
16. EFFECT OF TERMINATION
Without prejudice to any other rights, Velocitor may suspend or terminate, in part or in whole, without notice, End User’s use of the Services and this SA if End User does not abide by its terms, in which case End User must cease all use of the Services.
17. TAXES
Any sales, use, value added or other taxes (including applicable withholding taxes), shall be borne by the End User. Accordingly, End User shall pay or, if paid by Velocitor Solutions, shall reimburse Velocitor for all such taxes based on this SA or any fees payable hereunder (but not any taxes based upon Velocitor’s revenues or income), together with any interest on such taxes if not due to Velocitor’s delay.
18. NO ASSIGNMENT
End User may not transfer, delegate or assign, whether by operation of law or otherwise, this SA or any of its rights or obligations hereunder. Any attempted transfer, delegation or assignment in violation of this Section shall be null and void and of no force or effect.
19. THIRD PARTY BENEFICIARIES
Velocitor’s licensors, suppliers and agents are express third party beneficiaries of this SA.
20. ENTIRE AGREEMENT
This SA (as may be amended by time to time) is the entire agreement between End User and Velocitor relating to the Services and they supersede all prior or contemporaneous oral or written communications, proposals and representations with respect to the Services. The terms set out in this SA shall prevail and control over any and all additional or conflicting terms or provisions contained in any other document between Velocitor and End User, and any and all such additional or conflicting terms shall be void and shall have no effect.
21. GOVERNING LAW
This SA shall be governed by and construed in accordance with the laws of the state of North Carolina. If any provision of this SA is held by a court of competent jurisdiction to be illegal, invalid or unenforceable then the provision shall be severed and the other provisions shall remain in full force and effect. Venue for any cause of action arising under or in connection with this SA shall be Mecklenburg County, North Carolina.