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 CHECKBOX 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, AS WELL AS ANY APPLICABLE LSAWA HEREUNDER (HEREAFTER THE "AGREEMENT"). 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 AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
VELOXITY DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH VELOXITY PRIOR WRITTEN CONSENT. IN ADDITION, THE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
Jump to the following sections to learn more about Veloxity Terms of Service:
- 1. Subscription
- 2. Services Made Available to Subscribers
- 3. Third-Party Services
- 4. Subscriber and Authorized User Responsibilities
- 5. Fees and Payment
- 6. Term and Termination
- 7. Intellectual Property and Data Rights
- 8. Confidentiality
- 9. Representations, Warranties & Disclaimers
- 10. Indemnification
- 11. Limitation of Liability
- 12. CLASS ACTION WAIVER
- 13. GENERAL PROVISIONS
(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 (ii) use, display, and make an unlimited number of copies of the Documentation about the Software Platform and Add-On Services. For the purposes of this Section, the below terms shall be defined as follows:
(I) Authorized User
"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 specifically designated by Subscriber to access, use, display, and run the Software Services.
"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
"Software Services" shall be defined as the Software Platform, Add-On Services, and any related services including but not limit to hosting, maintenance technical support, routine back-up, and data protection services which are made available by Veloxity to Subscriber.
(iii) Software Platform
Software Platform shall be defined as the current version of the core customer relationship management functionality made available 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.
(iv) Add-On Services
Add-On Services shall be defined any one or more modules or other Software Services described below in Section 2(c) 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 the Software Platform. In any such case, 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. Subscriber shall have the right to assign and reassign Authorized Users in its sole and absolute discretion.
Subscriber and its Authorized Users may not share, distribute, resell, rent, lease, transfer, create derivative works of the Software Platform, or otherwise permit any third party to access, use, or display the Software Platform or Add-On Services. The Software Platform 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 Platform 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.
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.
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, as well as to any and all improvements, updates, or enhancements released thereafter as they are made available to subscribers.
(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 incorporated herein by reference.
(d) Technical Support Services
Veloxity makes available technical support technicians (i) by telephone during the hours of 9 a.m. through 5 p.m. EST, Monday through Friday, at (256) 254-5996, via community forums https://support.veloxity.com/hc/en-us/community/topics and (ii) by chat widow on its website. After-hours requests are answered on the next business day. Technical support requests will be addressed in accordance with the Priority Response Levels incorporated herein by reference. Veloxity also makes available a community page on its website where technical support questions can be addressed to other subscribers and users within the Veloxity community.
(e) Data Services
(f) Routine Back-up Services
Veloxity maintains real-time replication of all data, along with daily snapshots of the data on an inter-regional basis. Veloxity also maintains auto system recovery in the event of a failure of computing structure. All data is saved to servers in different regions.
3. Third-Party Services
Subscriber acknowledges and agrees that Veloxity shall have the right to rely on 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 incorporated herein by reference.
(b) Maintenance of Third Party Software Rights
The Software Platform makes 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.
(c) Removal of Content
If Subscriber receives a notice from any third party that any 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 the 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 content or receive information that content provided to Subscriber may violate applicable law or third-party rights, Veloxity may discontinue Subscriber’s access to the content through the Software Services.
Subscriber will ensure that (i) Authorized Users fully comply with these Terms of Service; (ii) all data is legally possessed and legally acquired; (iii) commercially reasonable efforts are exercised to prevent unauthorized access to or use of Software Services and content; (iv) Veloxity is promptly notified of any unauthorized access or use of the Software Services by an Authorized User; (v) Authorized Users will use all Software Services and content only in accordance with these Terms of Service and applicable laws and government regulations; (vi) no access to the Software Platform is provided to any party other than Subscriber or Authorized Users; (vii) the Software Services are not included in any service bureau or outsourcing offering; (viii) neither Subscriber or any Authorized User interferes with or disrupts the integrity or performance of any Software Services or third-party data contained therein; (ix) 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; (x) no third party uses any Software Services to access or use any of Veloxity intellectual property except as permitted under these Terms of Service; (xi) neither Subscriber nor Authorized Users modify, copy, or create derivative works of any content, Documentation, or other intellectual property; (xii) neither Subscriber nor Authorized Users copy Content except as permitted herein; and (xiii) except to the extent permitted by applicable law, neither Subscribers nor Authorized Users disassemble, reverse engineer, or decompile the Software Platform 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 Platform, (3) copy any ideas, features, functions or graphics of the Software Platform, or (4) determine whether any feature of the Software Platform is within the scope of any patent.
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.
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. 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) Fee Increases
Upon 30 days prior written notice in the advance of the commencement of a Renewal Period, Veloxity shall have the right to raise subscription fees in an amount not to exceed 10 percent more than the subscription fees charged to subscribers in the Renewal Period.
If any charge owing by Subscriber under these Terms of Service is (30) days or more overdue, (or 10 or more days overdue in the case of amounts Subscriber has authorized Veloxity to charged to Subscriber’s credit card), Veloxity may suspend all Software Services until such amounts are paid in full, provided that, other than for Subscriber’s paying by credit card or direct debit whose payment has been declined, Veloxity will give Subscriber at least 10 days’ prior notice that its account is overdue before suspending the account. Any suspensions that continue for more than 21 days shall be deemed to constitute a material breach.
(f) 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; Term; Renewal
The trial subscription commences on the date Subscriber signs up for a trial subscription and expires thirty (30) days thereafter (“Trial Period”). 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 for successive subscription periods (each period is a “Renewal Period”) to the extent permitted by applicable law.
(b) Termination at Will
Subscriber shall have the right to terminate at will during the Term or any Renewal Period for any reason at the sole and absolute discretion of Subscriber upon thirty (30) days’ prior written notice to Veloxity. Subscriber shall have the right to terminate without notice during the Trial Period for any reason at the sole and absolute discretion of Subscriber. Veloxity shall have the right to terminate at will for any violation of Section 4 above.
(c) Termination for Breach
During the Trial Period, Term, or Renewal Period, Veloxity shall have the right to do the following: (i) immediately terminate the subscription upon notice to Subscriber upon any breach of the Acceptable Use Policy by any Subscriber or Authorized Users; (ii) terminate the subscription for material breach of a term other than the acceptable use policy or the duty to make a payment upon thirty (30) days prior written notice to Subscriber of the breach and its intent to terminate and Subscriber’s failure to cure during the thirty (30) day period.
(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 until such time as they are fully exhausted: Sections 1(c), 5, 6 (d, f), 7, 8, and 10-13.
(e) Force Majeure
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 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 data uploaded by Subscriber to the Software Platform 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 Platform, Add-On Services & Documentation
Veloxity shall retain full ownership of all right, title, and interest in the 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 retain ownership of all right, title, and interest in 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 the logos and trademarks used by Subscriber in conjunction with the marketing and advertising of Subscriber’s business.
(c) Ownership of Content and Data
Veloxity acknowledges and agrees that Subscriber shall retain all, right, title, and interest in any content created or acquired by Veloxity that Subscriber or any Authorized User(s) upload(s) and store(s) to the Software Platform. Subscriber shall own all right, title, and interest in the 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 Platform 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, the terms and conditions of this Agreement (including pricing), 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. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section 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. For the Trial Period, the Term of this Agreement, and any Renewal Periods and for a period of five (5) years thereafter, 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.
9. Representations, Warranties & Disclaimers
Each party warrants and represents that it has validly entered into this Agreement and has the legal power to do so.
(i) Subscriber Warranty
Subscriber warrants and represents that Subscribers and Authorized Users will perform all the responsibilities set forth in Section 4 above.
(ii) Veloxity Warranty
Veloxity warrants and represents that during the Term and any Renewal Period, (i) all Services provided under this Agreement will be performed in a professional, workmanlike manner in accordance with generally accepted industry standards, and (ii) the Software Platform will perform substantially in accordance with the Documentation and will be free from any material defects.
(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 PLATFORM AND 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 AND THE VELOXITY WARRANTY STATED IN SECTION 9(c) ABOVE, THE PARTIES EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS, GUARANTEES, OR REPRESENTATIONS WITH RESPECT TO THE SOFTWARE PLATFORM, ADD-ON SERVICES, AND 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 violation of Subscriber or Authorized User responsibilities set forth in Section 4 (a) above or any use or misuse of data uploaded to the Software Platform, whether by an Authorized User or by any third party subscriber or authorized user; (b) any misappropriation of trade secrets by Subscriber or an Authorized User; (c) any infringement by Subscriber or Authorized User of intellectual property in the Software Platform or Add-On Services, the logos or trademarks, content, or any third party intellectual property rights; (d) any failure to make any payment due and payable pursuant to these Terms of Service; or (e) 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 (I) DURING THE TERM AND RENEWAL PERIOD, THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID BY SUBSCRIBER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE CLAIM OUT OF WHICH THE LIABILITY AROSE, AND (II) DURING THE TRIAL PERIOD, FIVE HUNDRED DOLLARS ($500.00). THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
(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 represent the entire agreement between Veloxity and Subscriber regarding the use of the Software Platform Software Services and supersede all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
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 (as defined below).
(c) Export Compliance
The Software Platform, Software Services, Content, 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 represent 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.
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.
No failure or delay by either party in exercising any right under these Terms of Service will constitute a waiver of that right.
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.
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 these Terms of Service and their 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.
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.