These Master Terms of Service (the “Terms”) are between Velou Inc., a Delaware corporation (“Velou”) and the Subscriber named on any Order Form (defined below) that incorporates or is incorporated into this Agreement or any other person or entity whose use of the Services is not governed by a superseding agreement (“Subscriber”, “you”). By clicking the box indicating acceptance, signing an Order Form, by making payment in accordance with an Order Form, accessing or using Velou’s Services, including the web sites, Subscriber agrees that such Order Form and its use of the Services shall be governed exclusively by this Agreement and any additional terms stated in such Order Form. If you register for a free trial of Velou’s services, the applicable provisions of these Terms will govern that free trial. If you are entering into this Agreement on behalf of a Subscriber that is a company or other legal entity, you warrant and represent that you have the authority to bind such entity and such entity’s affiliates to this Agreement.
1. Access to and Use of the Services.
1.1. Limited Purpose Grant. Velou will make the Services available to Subscriber according to one or more online or written ordering documents (each an “Order Form”). The Agreement includes each Order Form incorporating the Agreement.Subject to Subscriber’s continuing compliance with the terms of the complete subscription agreement including these Terms and any applicable Order Form (the “Agreement”) and payment of the applicable fees, Velou hereby grants to Subscriber a limited, personal, non-exclusive, non-transferable right for Subscriber to access and use the features and functions of the Services and Documentation during the subscription termin connection with its internal business operations. This access grant may not be sublicensed, in whole or in part. The scope of Subscriber’s use of the Services is subject to the terms and conditions of this Agreement, including any usage or other parameters or limitations set forth in the applicable Order Form. “Services” shall mean Velou’s search, software, support or other services made available for use to Subscriber under these Terms or as identified on the applicable Order Form, including any related technology components, such as Velou’sweb sites, applicable mobile applications, and related documentation. “Documentation” means the user guides and manuals for the Services and software made accessible as part of the Services (“Velou Software”), including additional, updated or revised documentation, if any, provided by Velou to Subscriber for Subscriber’s own internal business purposes
1.2 Velou Software. Except solely with respect to open source software Velou makes available ("Open Source Software"), including language specific codes that enable easy communication with Velou Software (the “API Clients”), Velou grants Subscriber a limited non-exclusive, non-transferable, non-sublicensable license to use the Velou Software solely in connection with the subscribed Services in accordance with the Agreement (including any Order Form) and in connection with its internal business operations. Open Source Software, including API Clients, and Subscriber’s use of such Open Source Software is subject to and governed by the applicable license accompanying, linked to or embedded in such Open Source Software (each an “Open Source License”) and Velou grants Subscriber a license to use the Open Source Software to the full extent permitted by the applicable Open Source License.
1.3 Feedback. Subscriber grants to Velou worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Subscriber.
2. Provision of the Services.
2.1 Service Availability. During the term of the Service, Velouwill use commercially reasonable efforts to operate the Service and notify Subscriber in advance of planned Service interruptions.
2.2 Data Security. In connection with Subscriber’s use of the Services, Velou will store, process, transmit and disclose electronic data, content, information and configurations received from Subscriber or submitted to the Services at the direction of or on behalf of Subscriber ("Subscriber Data"). Without limiting the disclaimers in this Agreement, Velouwill implement appropriate security measures as necessary to comply with applicable privacy laws regarding the security of personal information obtained from Subscriber(the “Security Measures”). Veloudoes not represent, warrant, or guarantee that unauthorized third parties will be unable to defeat Velou’ssecurity measures or use Subscriber’s personal information for improper purposes. Subscriber is solely responsible for maintaining the confidentiality of all user usernames and passwords and for all activities that occur under such usernames. Subscriber will immediately notify Velou of any suspected security breach or unauthorized access.
2.3 Protection of Subscriber Personal Data. To the extent Velou processes any Subscriber Personal Data (as defined in the DPA) contained in Subscriber Data on behalf of Subscriber, the terms of the Data Processing Addendum (the "DPA"), which are incorporated herein by reference, will apply and the parties agree to comply with such terms provided. Subscriber shall make such disclosures, obtain such consents, provide such choices, implement such safeguards in compliance with, and otherwise comply with, any applicable law, rule or regulation regarding the processing of Personal Data of any individual whose Personal Data processed is by Subscriber (including, without limitation, by disclosing the Personal Data to Velou) in connection with Subscriber’s use of or access to the Service and its features and associated services. For purposes of this Agreement, Subscriber is a "data controller" and Velou is a "data processor" with respect to Personal Data, as these terms are defined in the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data ("GDPR" or "General Data Protection Regulation").
2.4 Updates. Subscriber will be given access to any improvement, enhancement, modification and/or changes to the Services offered or provided by Velou to its subscribers at no charge that Velou implements during the subscription term. Subscriber acknowledges, however, that Velou may in the future offer optional value-added functions, features, or other capabilities for a separate fee.
2.5 Maintenance. Velou reserves the right to take down applicable servers hosting the Services to conduct scheduled and emergency maintenance. Velou will use commercially reasonable efforts to perform scheduled maintenance outside regular business hours and provide advance notice for non-emergency maintenance. Velou will not be responsible for any damages or costs incurred by Subscriber due to unavailability of the Services during scheduled or emergency maintenance.
3. Subscriber’s Obligations.
3.1 Personnel and Access Protocols. Subscriber will be responsible for the performance of its personnel (including employees and contractors) and their compliance with the Agreement. Subscriber acknowledges and agrees that, as between Subscriber and Velou, Subscriber shall be responsible for all acts and omissions of its personnel and Authorized Users, including any of their acts or omissions, which, if undertaken by Subscriber, would constitute a breach of this Agreement and any act by a Person using Subscriber’s access credentials to the Services. Subscriber shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement that are applicable their use of the Services and shall cause them to comply with such provisions.“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity. “Authorized User(s)” means end users of Subscriber who receive a user ID or other access credentials from Subscriber authorizing them to access and use the Services. The Service is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law.
3.2 Subscriber Data. As between Velou and Subscriber, Subscriber is responsible for Subscriber Data and the provision of Subscriber Data to the Services.Subscriber is fully responsible for the content, accuracy and completeness of the Subscriber Data, and any loss, liabilities or damages resulting from the Subscriber Data, regardless of the nature of the Subscriber Data including, without limitation, whether the Subscriber Data consists of, including but not limited to, data, text, graphics, audio, video, or computer software. Subscriber shall obtain and maintain any required consents necessary to permit the processing of Subscriber Data by Velou under the Agreement; and obtain and maintain any consents necessary to permit the processing by Velou of the personal information of Subscriber’s personnel that serve as Subscriber’s designated contact for purposes of the Services and the Agreement.Subscriber represents and warrants to Velou that: (i) Subscriber owns or has the necessary licenses to provide the Subscriber Data to Velou, and the provision of the Subscriber Data to, and use of the Subscriber Data by, Velou as contemplated herein will not infringe the intellectual property rights, including but not limited to copyright, patent, trademark or trade secret rights, of any third party; (ii) the Subscriber Data does not contain any computer viruses, worms, time bombs, Trojan horses and other harmful or malicious code, routines, files, scripts, agents or programs; and (iii) Subscriber has, in the case of Subscriber Data that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the Subscriber Data.
3.3 Restrictions. Subscriber agrees not to act outside the scope of the rights that are expressly granted by Velou in this Agreement. Subscriber will not (i) use the Services in any manner that is inconsistent with this Agreement; (ii) access or use the Services or in order to develop or support, or assist another party in developing or supporting, any products or services competitive with the Services; (iii) decompile, reverse engineer (unless required by law for interoperability), or use any other method in an attempt to view or recreate any of the source code of the Services or extract any trade secrets from it; (iv) use the Services to operate the business of a third party or to process data or content provided by a third party for the operation of a third party’s business, or otherwise use the Services on a third party’s behalf, or to act as a service bureau or provider of application services to any third party; (v) knowingly or intentionally re-use, disseminate, copy, or otherwise use the Services or associated Content in a way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of Velou or any third party; (vi) sell, lend, lease, assign, transfer, pledge, permit a lien upon, or sublicense any of the rights granted by this Agreement with respect to the Services; (vii) use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services; or (viii) post or transmit any file which contains viruses, worms, Trojan horses or any other contaminating or destructive features, or that otherwise may interfere with the proper working of Velou’s systems, including the Services.
3.4. No Interference with Service Operations. Subscriber will not take any action designed or intended to: (a) interfere with the proper working of the Services; (b) circumvent, disable, or interfere with security-related features of the Services or features that prevent or restrict use, access to, or copying the Services or any data, or that enforce limitations on use of the Services; or (c) impose (or which may impose, in Velou’s sole discretion) an unreasonable or disproportionately large load on the Services infrastructure.
3.5 Non-Velou Services. Subscriber may choose to use services not provided by Velou ("Non-Velou Services") with the Services and in doing so grants Velou permission to interoperate with the Non-Velou Services as directed by Subscriber or the Non-Velou Services. Unless specified in an Order Form: (a) Velou does not warrant or support Non-Velou Services, (b) as between Velou and Subscriber, Subscriber assumes all responsibility for the Non-Velou Services and any disclosure, modification or deletion of Subscriber Data by the Non-Velou Services and (c) Velou shall have no liability for, and Subscriber is not relieved of any obligations under the Agreement or entitled to any refund, credit, or other compensation due to any unavailability of the Non-Velou Services or any change in the ability of Velou to interoperate with the Non-Velou Services.
3.6 Service Suspensions. In the event that Velou determines that Subscriber has violated its obligations hereunder, Velou may suspend Subscriber’s access to the Services until Subscriber’s performance becomes compliant. All limitations of access, suspensions, and terminations for cause shall be made in Velou’s sole discretion and Velou shall not be liable to Subscriber or any third party for any suspension or termination of Subscriber’s account or access to the Services.
4. Fees and Payment.
4.1 Fees. Fees for the Services commence as set forth in an Order Form or if not so described therein then upon the date access to the Service is made available or 30 days after the Effective date of the applicable Order Form, whichever is earlier (the “Subscription Commencement Date”). Subscription Fees shall be charged for beginning on the Subscription Commencement Date and shall be paid on a calendar monthly basis in advance continuing through the end of the subscription term, unless otherwise stated in an Order Form. Velou may modify the fees at any time after the end of thesubscription term. Except as set forth in anOrder Form, all fees payable under the Agreement shall be made in U.S. Dollars,are non-cancelable; and cannot be decreased during the subscription term.
4.2 Payment Terms. Unless otherwise stated in an Order Form, the standard payment method is via Automated Clearinghouse (“ACH”) payments, and all fees are due monthly in advance, or as otherwise stated in an Order Form. For any late payments, Velou reserves the right to impose finance charges equal to the lesser of (a) 1.5% of the unpaid balance per month, or the highest rate permitted by applicable law, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including reasonable attorneys' fees) incurred by Velou to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against other amounts due to Subscriber for any reason. If Subscriber fails to timely pay any amounts due under this Agreement, Velou may, without limitation to any of its other rights or remedies, report delinquent amounts due to credit reporting agencies, suspend performance of the Services and support services, and/or terminate the applicable Order Form governed by this Agreement and all corresponding Order Forms as a whole.
4.3 Payment Authorizations. Subscriber hereby authorizes Velou to initiate debit entries to Subscriber’s account specified in the Order Form, through ACH transfers, or other payment method as stated in an Order Form, in order to satisfy all payment requirements hereunder, and will provide Velou at least thirty (30) days’ notice of any change in Subscriber’s account.
4.4 Taxes. The fees stated on the Order Form do not include local, state, federal or foreign taxes (e.g., value- added, sales or use taxes), fees, duties, or other governmental charges resulting from this Agreement (collectively, “Taxes”). Subscriber is responsible for paying all applicable Taxes, excluding Taxes based on Velou’ net income or property. If Velou determines it has the legal obligation to pay or collect Taxes, Velou will add such Taxes to the applicable invoice and Subscriber will pay such Taxes, unless Subscriber provides Velou with a valid tax exemption certificate from the appropriate taxing authority. Subscriber is wholly responsible for self-assessing, reporting, and remitting applicable taxes to the appropriate taxing authorities in the event that Velou does not add such taxes to its applicable invoices. If a taxing authority subsequently inquires or pursues Velou for unpaid Taxes for which Subscriber is responsible under this Agreement and which were not paid by Subscriber to Velou, Subscriber agrees to cooperate with Velou in good faith during such inquiry or pursuit, and Velou may invoice Subscriber and Subscriber will pay such Taxes to Velou or directly to the taxing authority, plus all applicable interest, penalties and fees.
5. Free Trial.
5.1 If Subscriber registers at Velou’s websites for a free trial ("Trial Account") of one or more Services, Velou will make such Services available to Subscriber on a trial basis free of charge until the earlier of (a) fourteen (14) days (the “Evaluation Period”), (b) the start of any paid subscription for such Services, or (c) termination by Velou at its sole discretion. If, at the end of the Evaluation Period, Subscriber does not sign up for a paid subscription of the Services, the Agreement will automatically terminate unless Velou agrees, in its sole discretion, to extend the Evaluation Period. Additional terms and conditions may appear on the registration website for a Trial Account and any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
5.2 ALL TRIAL ACCOUNTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. TRIAL ACCOUNTS MAY BE SUSPENDED, TERMINATED, OR DISCONTINUED AT ANY TIME AND FOR ANY REASON (OR NO REASON). VELOU DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A TRIAL ACCOUNT, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO A TRIAL ACCOUNT, AND ANY CUSTOMIZATIONS MADE TO A TRIAL ACCOUNT BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE TRIAL ACCOUNT IS SUSPENDED, TERMINATED, OR DISCONTINUED. VELOU’S INDEMNITY OBLIGATIONS DO NOT APPLY TO TRIAL ACCOUNTS.
6. Term and Termination.
6.1. Duration of Agreement. This Agreement shall govern all Services provided by Velou to Subscriber beginning upon the effective date of the applicable Order Form. Services provided under this Agreement shall be provided for the initial period of time defined in the Order Form (“Initial Term”), unless earlier suspended or terminated in accordance with the Agreement or the Order Form and shall automatically renew for successive one (1) year terms unless a different renewal term is specified on the Order Form (each, a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides written notice of its intent not to renew no later than thirty (30) days prior to the expiration of the Initial Term or current Renewal Term.
6.2. Termination. Either Subscriber or Velou may terminate this Agreement, and all Order Forms or only affected Order Forms (a) for cause upon written notice to the other party if the other party has committed a material breach of this Agreement and the breach remains uncured 30 days after the breaching party has received written notice of the breach from the non-breaching party, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.3. Effect of Termination. If the Services provided under this Agreement are terminated for any reason, Velou shall have no obligation to provide the Serviceafter the effective date of the termination. If the Service is terminated by Velou due to Subscriber’s uncured breach of an Order Form or this Agreement, Subscriber will immediately pay to Velou all subscription fees for the remainder of the Initial Term or then-current Renewal Term (as applicable), and will make all other payments that have accrued prior to the effective date of termination. If the Service is terminated due to Velou’s uncured breach or for non-renewal of a Term, Subscriber will immediately pay to Velou any feesamounts that have accrued prior to the effective date of the termination.Subscriberis solely responsible for deleting or retrieving Subscriber Data from the Services prior to termination of a Subscriber account for any reason. If Velou terminates youraccount, Velou will provide you a reasonable opportunity to retrieve Subscriber Data from the applicable Services, if requested in writing. Such a request must be sent by email to Velou within seven (7) days after Subscriber receives notice regarding the termination.
6.4. Survival. Any provision of the Agreement that contemplates or governs performance or observance subsequent to its termination or expiration will survive the expiration or termination of this Agreement (or the applicable Order Form) for any reason.
7. Beta Services.
From time to time, Velou may offer services designated aspilot, beta, non-production, evaluation or by a description of similar meaning ("Beta Services"). If such Beta Services are accepted by Subscriber, Beta Services: (a) not be relied on by Subscriber for production use; (b) are provided only for evaluation purposes; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available or is discontinued. Velou may discontinue Beta Services at any time in its sole discretion and may never make Beta Services generally available. ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. BETA SERVICES MAY BE TERMINATED AT ANY TIME. VELOU DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO SUBSCRIBER DATA. ANY CONFIGURATIONS OR SUBSCRIBER DATA ENTERED INTO BETA SERVICES, AND ANY CUSTOMIZATIONS MADE TO BETA SERVICES BY OR FOR SUBSCRIBER, MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.=
8.1 Confidential Information. “Confidential Information” means all information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential or, given the nature of the information and the circumstances of disclosure, should be understood to be confidential. Subscriber’s Confidential Information includes the Subscriber Data; Velou’s Confidential Information includes the Services; and Confidential Information of each party includes but is not limited to the terms and conditions of the Agreement and all Order Forms, including pricing, business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by each party in connection with the Agreement. Confidential Information does not include information that: (a) is at the time of disclosure, or later becomes, generally known to the public through no fault of Receiving Party; (b) was known to the Receiving Party with no obligation of confidentiality prior to disclosure by Disclosing Party, as proven by records of Receiving Party; (c) is disclosed to Receiving Party by a third party who did not directly or indirectly obtain the information subject to any confidentiality obligation; or (d) is at any time independently developed by Receiving Party without use of Disclosing Party’s Confidential Information as proven by records of Receiving Party.
8.2 Protection of Confidential Information. Receiving Party shall not disclose or otherwise make available any Confidential Information of Disclosing Party to anyone except those of its employees, directors, attorneys, agents and consultants who: (a) need to know the Confidential Information in connection with the purpose of the Agreement and (b) who have previously agreed to be bound by confidentiality obligations no less stringent than those in the Agreement. Each party shall (x) safeguard all Confidential Information of the other party with at least the same degree of care (but no less than reasonable care) as it uses to safeguard its own confidential information and (y) not use any Confidential Information of the other party for any purpose outside the scope of the Agreement.If Receiving Party is compelled by law to disclose Confidential Information of Disclosing Party, then to the extent legally permitted, Receiving Party shall provide Disclosing Party with prior notice of the compelled disclosure and reasonable assistance, at Disclosing Party’s cost, if Disclosing Party wishes to contest the compelled disclosure. Any compelled disclosure shall be limited to the extent required and shall be subject to confidentiality protections to the extent practicable. If Receiving Party is compelled by law to disclose Disclosing Party’s Confidential Information as part of a civil proceeding to which Disclosing Party is a party, and Disclosing Party is not contesting the disclosure, Disclosing Party will reimburse Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. Proprietary Rights
9.1 Proprietary Rights. The Services, Documentation and Velou Software are the proprietary information of Velou. Subject to the limited rights expressly granted in the Agreement, Velou and Velou’s licensors reserve all right, title, and interest in and to the Services, Documentation and the Velou Software, including all related intellectual property rights. No rights are granted to Subscriber except as expressly set forth in the Agreement. No rights are granted to Velou except as expressly set forth in the Agreement. It is expressly agreed by the parties that title to the Velou Software does not pass to Subscriber and Subscriber rights with respect to the Velou Software will only be that of a licensee. Any derivative work Subscriber or any of its agents may create of any part of the Services, Velou Software and Documentation, and all rights be therein, shall be owned solely by Velou. To that end, Subscriber hereby irrevocably transfers and conveys to Velou, without further consideration, all right, title and interest that Subscriber may have or acquire in any such derivative work.
9.2 Subscriber Data. Subscriber grants Velou a worldwide, nonexclusive, revocable, and limited license to store, copy, transmit, and display Subscriber Data and to interoperate with any Non-Velou Services as necessary in order for Velou to provide the Services in accordance with the Agreement. Any Subscriber Data that is obtained from Subscriber and aggregated in a de-identified format such that Subscriber nor its customers may be practicably identified will be owned by Velou or its business partners and may be used and shared by Velou for any legally permissible purpose.
9.3 Support Related Deliverables. Velou hereby grants Subscriber a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to use for its internal business purposes anything developed by Velou for Subscriber and delivered by Velou to Subscriber in connection with support services ("Deliverables"). Subject to Subscriber’s ownership of its proprietary and Confidential Information disclosed to Velou under Section 8 (Confidentiality), Velou shall retain all ownership rights to the Deliverables. Deliverables that are custom code written by Velou to facilitate Subscriber’s use of the Services that include any Subscriber Confidential Information shall remain subject to the confidentiality obligations under Section 8 (Confidentiality) and Subscriber shall retain all ownership rights to its Confidential Information. ALL SUCH CUSTOM CODE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. VELOU DISCLAIMS ALL OBLIGATION AND LIABILITY UNDER THE AGREEMENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH CUSTOM CODE.
10. Government Rights.
The Services may include access to Velou Software. In such case, such Velou Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if Subscriber is an agency of, or contractor to, the US Government, it receives only those rights with respect to such software as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors. If Subscriber is a government agency that has a need for rights not granted under the Agreement, it must negotiate with Velou to determine if there are acceptable terms for granting those rights, and mutually acceptable written terms specifically granting those rights must be included in any applicable agreement.
11. Export Compliance.
The Services, Velou Software and the Documentation may be subject to export laws and regulations of the United States and other jurisdictions, and any use or transfer of the Services, Velou Software and Documentation must be permitted under these laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not enable use of the Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, Crimea – Region of Ukraine, or Syria) or in violation of any U.S. export law or regulation.
12. Limited Warranties.
12.1 Authority. Each of Velou and Subscriber represents and warrants that: (a) it has the full right, power and authority to enter into and fully perform this Agreement; (b) the person signing this Agreement on its behalf is a duly authorized representative of such party who has in fact been authorized to execute this Agreement; (c) its entry herein does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation and shall continuously remain in good standing during the term of this Agreement.
12.2 Services Warranty. Velou warrants to Subscriber that during the term of the Agreement, the Services will perform in material accordance with the functions described in the applicable Documentation when operated in accordance with this Agreement.Velou is not obligated to correct errors caused by unauthorized modification to the Services, by using Services other than as described in the Documentation, by non-Velou software, or by combining the Serviceswith any hardware or software not authorized by Velou in writing.For breach of the foregoing warranty, Subscriber’s exclusive remedy and Velou’s entire liability will be reperformance of the applicable Service at issue.
12.3 NO IMPLIED WARRANTIES. THE WARRANTIES ABOVE ARE THE EXCLUSIVE WARRANTIES REGARDING THE SOFTWARE, TECHNICAL SUPPORT AND SERVICES AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES OF VELOU, WHETHER EXPRESS OR IMPLIED, INCLUDING NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12.4 DISCLAIMER. EXCEPT AS SET FORTH IN SECTION 12.2, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND VELOU DOES NOT WARRANT THAT ANY SOFTWARE, DOCUMENTATION OR SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS, THAT THE SOFTWARE WILL OPERATE IN THE COMBINATIONS WHICH SUBSCRIBERMAY SELECT FOR USE OR WITH ANY NON-VELOU PROGRAMS USED BY SUBSCRIBER, THAT THE OPERATION OF ANY PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT IT WILL REVIEW THE SUBSCRIBERDATA FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE SUBSCRIBERDATA WITHOUT LOSS, THAT THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE OR THAT ALL ERRORS IN PRODUCTS OR DOCUMENTATION WILL BE CORRECTED.
13. Limitation of Liability.
IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY (TOGETHER WITH ALL OF ITS AFFILIATES) ARISING OUT OF OR RELATED TO THE AGREEMENT (REGARDLESS OF THE NUMBER OF INDIVIDUAL INCIDENTS GIVING RISE TO LIABILITY) EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY SUBSCRIBER AND ITS AFFILATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT) OR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 14 (INDEMNIFICATION).IN NO EVENT WILL A PARTY HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS, LOST OPPORTUNITIES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THESE TYPES OF DAMAGES OR A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
14.1 Indemnification by Velou. Velou will indemnify and defend Subscriber and its Affiliates and their respective officers, directors and employees against any and all third party claims, demands, suits or proceedings (each a “Claim Against Subscriber”) and all related judgments, liabilities, awards, damages, costs, including reasonable attorneys’ fees and expenses, arising out of or in connection with, or alleging the Services (exclusive of Open Source Software) or use of the Services (exclusive of Open Source Software) by Subscriber in accordance with the Agreement infringe or misappropriate the third party’s intellectual property rights, provided Subscriber (a) promptly gives Velou written notice of the Claim Against Subscriber; (b) gives Velou sole control of the defense and settlement of the Claim Against Subscriber (except that Velou may not settle any Claim Against Subscriber unless it unconditionally releases Subscriber of all liability related to the Claim Against Subscriber); and (c) gives Velou all reasonable assistance in connection with the defense or settlement of such Claim Against Subscriber, at Velou’s expense. If Velou receives information about an infringement or misappropriation claim related to the Services, Velou may in its discretion and at no cost to Subscriber (x) modify the Service so that it no longer infringes or misappropriates; (y) obtain a license for Subscriber’s continued use of that Service in accordance with the Agreement; or (z) terminate Subscriber’s subscription for the affected portion of the Service upon 30 days’ written notice and refund Subscriber any prepaid fees covering the remainder of the term for the terminated portion of the Services. The above defense and indemnification obligations do not apply to the extent a Claim Against Subscriber arises from (i) Subscriber Data, (ii) Subscriber’s use of Beta Services, (iii) a Non-Velou Service, (iv) Subscriber’s breach of the Agreement, (v) any modification or alternation to the Services not made by Velou, (vi) any combination or use of the Services with products or services not expressly approved by Velou or (vii) Subscriber’s continued use of the allegedly infringing portion of the Services after receiving notice from Velou regarding the same.
An “Affiliate” of a party is any entity (a) that the party Controls; (b) that the party is Controlled by; or (c) with which the party is under common Control, where “Control” means direct or indirect control of fifty percent (50%) or more of an entity’s voting interests (including by ownership).
14.2 Indemnification by Subscriber. Subscriber will indemnify and defend Velou and its Affiliates and their respective officers, directors and employees against any and all third party claims, demands, suits or proceedings (each a “Claim Against Velou”) and all related judgments, liabilities, awards, damages, costs, including reasonable attorneys’ fees and expenses, arising out of or in connection with, (i) Subscriber Data, or (ii) Subscriber’s use of the Services in breach of the Agreement, provided Velou (a) promptly gives Subscriber written notice of the Claim Against Velou; (b) gives Subscriber sole control of the defense and settlement of the Claim Against Velou (except that Subscriber may not settle any Claim Against Velou unless it unconditionally releases Velou of all liability related to the Claim Against Velou); and (c) give Subscriber all reasonable assistance in connection with the defense or settlement of such Claim Against Velou, at Subscriber’s expense. The above defense and indemnification obligations do not apply to the extent a Claim Against Velou arises from the Services or Velou’s breach of the Agreement. Except with respect to a dispute between Subscriber and Velou, Subscriber will reimburse Velou for all costs and reasonable attorneys’ fees for responding to third party or governmental requests for information arising out of or in connection with Subscriber Data or Subscriber’s use of the Services.
14.3 Exclusive Remedy. This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.
15.1. Governing Law and Jurisdiction. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of California, without reference to its choice of law rules. Subscriber and Velou submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in the county of San Francisco, California and waive all challenges to such jurisdiction and venue including, without limitation, forum non conveniens. Neither the Uniform Commercial Code nor The United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement or any transaction contemplated hereunder.
15.2. Force Majeure. Notwithstanding any other provision of this Agreement, no party to the Agreement shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of amounts due) due to any cause beyond the reasonable control of, and without fault or negligence by, such party or its officers, directors, employees, agents or contractors.
15.3. Notice. All notices required or permitted under this Agreement will be in writing and sent by certified mail, return receipt requested, or by reputable oversight courier, or by hand delivery. The notice address for Velou and Subscriber shall be their respective addresses specified in the applicable Order Form. Any notice sent in the manner sent forth above shall be deemed sufficiently given for all purposes hereunder (i) in the case of certified mail, on the second business day after deposited in the U.S. mail and (ii) in the case of overnight courier or hand delivery, upon delivery. Either party may change its notice address by giving written notice to the other party by the means specified in this Section.
15.4. Construction; Headings. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party by any court or arbitrator by reason of such party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
15.5. Publicity. Velou may include Subscriber’s name and logo in its customer lists and on its website. Upon signing, Velou may issue a high-level press release announcing the relationship and the manner in which Subscriber will use the Velou’s solution. Velou shall coordinate its efforts with appropriate communications personnel in Subscriber’s organization to secure approval of the press release upon Subscriber’s request.
15.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, then the Parties agree to replace it with an enforceable provision reflecting the intent of the original provision as nearly as possible in accordance with applicable law, and the remaining provisions of this Agreement will remain in full force and effect.
15.7. Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement.
15.8. Entire Agreement; Amendments. This Agreement (including all Order Forms entered under it) constitutes the entire agreement between Velou and Subscriber with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein and therein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the Parties with respect to such matter. This Agreement may be amended only by an instrument in writing executed by the Parties’ duly authorized representatives.
15.9. Counterparts; Signatures. This Agreement may be signed in counterparts with the same effect as if the signatures were upon a single instrument, and all such counterparts together shall be deemed an original of this Agreement. For purposes of this Agreement, a facsimile copy of a party’s signature made by reliable means shall be sufficient to bind such party.
15.10. Disclosures and Notices and E-Sign Consent. Velou may provide disclosures and notices regarding the Services or the Agreement to Subscriber electronically by posting it to itsweb sites, or by emailing it to an email address listed in Subscriber’s account. Those electronic disclosures and notices will have the same meaning and effect as if Subscriber was provided with physical copies. Those disclosures and notices are considered received by Subscriber within 48 hours of the time posted or emailed to Subscriber unless Velou receives notice of non-delivery. It is Subscriber’s responsibility to keep email address(es) valid and active and to monitor the email account(s). Velou will not be liable to Subscriber or any third party for any losses resulting from Subscriber’s failure to comply with the foregoing. To withdraw consent to receiving disclosures and notices electronically, Subscriber should contact email@example.com.
15.11. Assignment. Subscriber will not assign or transfer its benefit or obligations under the Agreement without Velou’s prior written consent. Any sale or transfer of the equity interests of Subscriber’s business such that the holders of the equity interests of Subscriber’s business do not own more than 50% of the equity interests immediately after such transfer shall be deemed an assignment of this Agreement. Velou may assign any or all of its rights under the Agreement in its sole discretion. Subject to the foregoing, the Agreement is binding upon the parties and their successors and assigns (including those by merger and acquisition).
15.12. Agreement Changes. Velou has the right to change or add to the terms of the Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Services (an “Agreement Change”) with notice that is reasonable in light of the circumstances, such as by updating the Agreement on the Velouweb site. Use of the Services after notice of any Agreement Change will confirm that Subscriber have read, accepted, and agreed to be bound by the modifications to the Agreement or constitute Subscriber’s acceptance of the changed Subscription. Notwithstanding the foregoing, (a) any dispute between the parties that arose before the effective date of an Agreement Change is governed by the Agreement (including the binding individual arbitration clause) that was in place when the dispute arose and (b) if an Agreement Change negatively and materially impacts Subscriber’s rights under the Agreement, and Velou does not waive the applicability of those changes to Subscriber, Subscriber may terminate the Agreement by providing written notice thereof to Velou, and in that event, is released from any payment obligations under the Agreement except for outstanding fees owed. That notice must be given within 30 days following the date of notice by Velou of the Agreement Change.