END USER SERVICES AGREEMENT
PLEASE READ CAREFULLY
IMPORTANT INFORMATION – THIS END USER SERVICES AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AS AN INDIVIDUAL, COMPANY OR OTHER LEGAL ENTITY (IN ANY CAPACITY REFERRED TO HEREIN AS “END USER”, “YOU” OR “YOUR”) AND VELOSTRATA LTD. (“VELOSTRATA”).
BY DEPLOYING THE VELOSTRATA VIRTUAL APPLIANCE OR OTHERWISE USING THE SERVICES (AS DEFINED BELOW), YOU AGREE TO THE TERMS OF THIS AGREEMENT. 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 ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. 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 SERVICES.
1. Definitions. As used in this Agreement, the following terms have the following definitions:
(a) “Benefiting Party” means a party seeking indemnification under this Agreement.
(b) “Cloud Computing Services” means third party cloud based computing services such as Amazon Web Services or other cloud based computing services pre-approved by Velostrata, that conform to the Documentation.
(c) “Confidential Information” means all data and information, not made available to the general public, oral or written, that relates to Velostrata’s past, present, or future research, development or business activities, information relating to Services, the Software, support, developments, inventions, processes, plans, financial information, customer and supplier lists, forecasts, and projections.
(d) “Defending Party” means a party from whom indemnification is sought under this Agreement.
(e) “Documentation” means the Services documentation provided to you by Velostrata from time to time.
(f) “Force Majeure” means any cause or event not within the reasonable control of the relevant party and without its fault or negligence, such as an act of God, act of war, labor disputes, reason of fire, floods, failure of the internet or any network used to access or provide the Services, failure of service attack, or inability to obtain necessary materials or services from suppliers if no equipment sources for such suppliers or services are readily available.
(g) “Guidelines” means the support features page located at the following URL: http://velostrata.com/support, as may be updated from time to time.
(h) “Operational Data” means certain non-personal information, such as your system performance and operational logs information, that is collected and/or stored by Velostrata in order to provide the Services and support.
(i) “Order” means a purchase order for Services or for increased or extended deployed capacity that is submitted to Velostrata or to a Partner, including through Velostrata’s management interface.
(j) “Partner” means an authorized Velostrata reseller, distributor, partner or solution provider.
(k) “Services” means the Velostrata services and products ordered by you via a valid Order accepted by Velostrata or a Partner, or otherwise purchased by you in accordance with this Agreement, including through the management interface.
(l) “Software” means the software underlying the Services, including Software Components.
(m) “Software Components” means software components made available to you by Velostrata in connection with the Services, for installation on your computer systems and/or on your Cloud Computing Services.
(n) “Standard Support” means the standard support for Velostrata Services as described in the Guidelines.
(o) “Third Party Components” means third party software, files and components that are subject to open source and/or third party license terms, that may be used by, or included in, the Services and/or Software.
(p) “Warranty” means the limited warranty described in Section 17 below.
(q) “Warranty Exclusion” means a failure of the Services or Software that results from or is otherwise attributable to any of the following: (a) the modification of Services or Software not made or authorized by Velostrata in writing, where such infringement would not have occurred but for such modifications, (b) Velostrata’s compliance with specifications provided by you, (c) your failure to use updated or modified Services or Software made available by Velostrata, (d) your use or distribution of Services or Software other than in accordance with this Agreement and the Documentation, or (e) any failure that is caused or initiated by Velostrata’s hosting provider or by any other third party, including internet service providers, internet network providers and the Cloud Computing Services.
2. Services. Subject to the terms and conditions of this Agreement and payment of all applicable fees, Velostrata will make the Services available to you during the term of this Agreement for your use in accordance with the Documentation and only on Cloud Computing Services. Following your purchase of Services, Velostrata will provide subscription information via which you may access the applicable Services.
3. Software Components. In order for the Services to function properly, you will be required to install certain Software Components on your computer systems and/or on your Cloud Computing Services. Velostrata grants to you a non-exclusive, non-sublicensable, limited license to use the Software Components in accordance with the Documentation during the term of this Agreement, in order to receive the Services. All other rights in the Software Components are expressly reserved by Velostrata.
4. Third Party Cloud Computing Services. The Services require the use of Cloud Computing Services. Velostrata does not provide such Cloud Computing Services and therefore, in order to use the Services, you must independently purchase the Cloud Computing Services. The cost of the Cloud Computing Services is not included in the fees payable under this Agreement. Your right to use such Cloud Computing Services is subject to any agreements and terms and conditions between you and the provider of the Cloud Computing Services and you are solely responsible for compliance with any such agreements and terms and conditions. If you purchased the Service on a marketplace associated with certain Cloud Computing Services, you may use the Services and Software ONLY with such Cloud Computing Services, and may not use the Services and Software with any other cloud computing services. In addition, use of Services and/or Software with any cloud based computing services or other hardware that are not Cloud Computing Services or other hardware approved by Velostrata in the Documentation is prohibited and constitutes a breach of this Agreement. Use of the Services and/or Software on any cloud computing services prohibited by this Agreement may cause damage to your files and data. Velostrata disclaims, and you hereby irrevocably release Velostrata from, any and all liability for any such damage.
5. Other Rights and Limitations. You may not, and may not permit or aid others to, translate, reverse engineer, decompile, disassemble, update, modify, reproduce, create derivative works of, duplicate, copy, distribute or otherwise disseminate all or any part of the Software, or extract or attempt to extract source code from the object code of the Software. You may not make any commercial use of the Services or the Software, whether or not for consideration, other than for your own internal business purposes, or publicly perform or publicly display the Software, unless explicitly agreed in writing by Velostrata.
6. Support. By purchasing a subscription to the Services, you will be entitled to the Standard Support offered by Velostrata in accordance with the Guidelines. Velostrata Standard Support shall be available only as described in the Guidelines.
7. Service Availability. Velostrata will use commercially reasonable efforts to make the hosted Services available 24 hours a day, 7 days a week, other than downtime for scheduled maintenance or critical bug fixes. Velostrata will strive to give you advance notice of any impending downtime 48 hours in advance or, if not possible, as much advance notice as possible, and will strive to perform scheduled maintenance during non-peak hours based on US Eastern time. Velostrata cannot and will not be responsible or liable in any manner for any downtime or disruptions or difficulties in accessing the Services that are caused or initiated by its hosting provider or by any other third party, including internet service providers, internet network providers and the Cloud Computing Services.
8. Orders and Fees. You may purchase Services and increase or extend deployed capacity of existing Services by submitting an Order. All Orders are subject to acceptance by Velostrata or the applicable Partner. The applicable fees for Services and support shall be as stipulated in Velostrata’s then-current price list or, if the purchase is made through a Partner, the then-current price list of such Partner. All Services that were purchased by you for a defined subscription period will be automatically renewed at the end of their subscription period for additional one (1) year periods, unless you deliver a written termination of such Services to Velostrata at least thirty (30) days prior to the end of the then-current subscription period or if terminated in accordance with the provisions of Section 22 below.
9. Usage of Increased Capacity. In the event that you order Services for a defined subscription period and you use increased or extended deployed capacity of Services beyond the capacity that was otherwise ordered by you for such period, such use shall be deemed an irrevocable Order placed by you for such additional capacity throughout the remainder of your then-current subscription period and for any subsequent renewal periods in accordance with the terms and conditions of this Agreement.
10. Taxes. The prices Velostrata charges for Services and support do not include, and you shall pay or refund Velostrata for, all taxes (including, without limitation, sales, withholding, value-added and similar taxes) or customs duties paid or payable, however designated, based on the sale of Services and support under this Agreement, with the exception of Velostrata’s income taxes. You shall gross-up all payments to ensure remittance to Velostrata of the amounts invoiced.
11. Payment Terms. All payments will be due thirty (30) days from the date of an Order or pursuant to other payment terms agreed in writing or electronically between you and Velostrata or the applicable Partner. All payments will be made in U.S. dollars, by wire transfer or credit card, to the address or bank account designated by Velostrata or the applicable Partner. By providing credit card information to Velostrata and using the Services, you authorize Velostrata to charge such credit card for all Services and support purchased by you from time to time including all renewal periods. All amounts not paid when due will accrue interest at the lower of 1.0% per month or the highest rate permissible by applicable law. You will promptly reimburse Velostrata for all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by Velostrata in connection with collecting any overdue amounts.
12. Proprietary Rights. You acknowledge and agree that the Services and the Software are proprietary products of Velostrata and its licensors, protected under patents, copyright laws and/or international treaties. You further acknowledge and agree that all right, title and interest in and to the Services and the Software, including associated intellectual property rights and all improvements, modifications, revisions, derivative works, NRE, customization and integration work product, customer feedback and suggestions, are and shall remain the sole and exclusive property of Velostrata and its licensors. This Agreement and the rights granted hereunder do not convey to you any interest in or to the Services and Software other than the limited license provided above. You shall not remove or alter any copyright notice, trademark or other proprietary or restrictive notice or legend affixed to, embedded, contained or included in the Software or Services or any material provided by Velostrata.
13. Modification of Services. Velostrata may add features or functionality or improve or change or modify the Services at any time at its sole discretion. Velostrata will not intentionally remove material features or functionality, other than beta or test features or functionality, during a term for which you have paid for Services that include such features or functionality.
14. Prohibited Actions. Except as specifically permitted herein, without the prior written consent of Velostrata you agree not to, directly or indirectly: (i) actually or seek to interfere with or disrupt the operation of the Services; (ii) use the Services or Software to install, reproduce or run any third party software in the Cloud Computing Services unless you have all rights and licenses from the owner or licensor of such third party software in order to do so; (iii) use, modify, incorporate into or with other software, or create a derivative work of any part of the Software; (iv) sell, license (or sub-license), lease, assign, transfer, pledge, or share your rights under this Agreement with or to anyone else; (v) copy, distribute or reproduce the Services or Software; (vi) disclose the results of any benchmarking of the Services, or use such results for your own software development activities; (vii) modify, disassemble, decompile, reverse engineer, revise or enhance the Services or Software or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software; and/or (viii) ship, transfer or export the Services or Software into any country, or make available or use the Software in any manner which is in violation of United States export control laws or regulations.
15. Operational Data. In order to provide the Services and support, Velostrata may collect and/or store certain Operational Date. The Operational Data may contain sensitive, and/or confidential data. Velostrata will provide such a list of such data upon request. Operational Data may be transmitted through Velostrata’s servers. Velostrata utilizes industry standard practices and policies to maintain administrative, physical and technical safeguards for the protection and security of the Operational Data. You are hereby notified and acknowledge that the Services may include interaction and communication with facilities hosted outside of the country where you purchased or utilize the Services or Software. You are further notified and acknowledge that some of the Services may allow you to send your Operational Data to Velostrata. Submission of Operational Data to Velostrata shall be at your sole discretion and at your own risk, and Velostrata assumes no responsibility or liability for receipt of such Operational Data. Operational Data sent to Velostrata may be stored by Velostrata and may be used for Your technical support. You further acknowledge that Velostrata may anonymize such Operational Data for use in technical training and product improvement.
16. Confidentiality. You shall not disclose to third parties nor use for any purpose other than for the proper use of the Services any Confidential Information received from Velostrata in whatever form under this Agreement or in connection with the Services without the prior written permission of Velostrata. You shall limit access to Confidential Information to those of your personnel for whom such access is reasonably necessary for the proper use of the Services under this Agreement. Such personnel shall be bound by written confidentiality obligations not less restrictive than those provided for herein. You shall be responsible for any breach of this Agreement by any of your personnel. You shall protect the Confidential Information with the same degree of care, but no less than a reasonable degree of care, to prevent unauthorized disclosure or use of Confidential Information, as you exercise in protecting your own proprietary information. The aforementioned limitations shall not apply to Confidential Information which the you can demonstrate: (i) was in your possession prior to disclosure hereunder provided that, immediately upon disclosure, you have brought this fact to the attention of Velostrata; or (ii) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations herein contained; or (iii) was disclosed by a third party without breach of any obligation of confidentiality; or (iv) is disclosed pursuant to administrative or judicial action, provided that you shall use your best efforts to maintain the confidentiality of the Confidential Information. If only a portion of the Confidential Information falls under any of the above alternatives, then only that portion of the Confidential Information shall be excluded from the use and disclosure restrictions of this provision.
17. Limited Warranty; Disclaimer. If you are paying a fee to use the Services, Velostrata warrants that: (a) the Services will perform in accordance with the Documentation in all material respects, unless the failure was caused by any of the circumstances listed in Section 7 above or a Force Majeure; and (b) support services will be provided with the same level of service as Velostrata generally provides to its other customers. In the event of a breach of the Warranty that has not been remedied by Velostrata within thirty (30) days of your written notice to Velostrata of a breach of the Warranty and Velostrata’s written confirmation that a Warranty breach has occurred, your sole remedy shall be to terminate this Agreement in accordance with Section 22 below and to receive a refund of amounts paid by you for use of the Services for the period following the effective date of termination.
The Warranty shall not apply if the failure of the Services or Software results from or is otherwise attributable to a Warranty Exclusion.
OTHER THAN THE FOREGOING LIMITED WARRANTY, THE SERVICES, SOFTWARE AND SUPPORT ARE PROVIDED “AS-IS” AND NO OTHER WARRANTIES OF ANY KIND ARE MADE BY VELOSTRATA. VELOSTRATA DOES NOT WARRANT THAT THE SERVICES, SOFTWARE OR SUPPORT WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES’ AND SOFTWARE'S OPERATION WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS. TO THE EXTENT ALLOWED BY LAW, VELOSTRATA EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
18. Limitation of Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, VELOSTRATA’S CUMULATIVE LIABILITY TO YOU AND ANY THIRD PARTY FOR ANY LOSS, COST OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR USE OF THE SERVICES AND/OR SOFTWARE AND/OR SUPPORT SHALL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU HEREUNDER OR, IN THE CASE OF PAYMENT THROUGH A PARTNER, THE TOTAL FEES ACTUALLY PAID BY THE PARTNER TO VELOSTRATA IN RESPECT OF YOUR USE OF SERVICES, DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE ALLEGED DAMAGES. IN NO EVENT SHALL VELOSTRATA BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST DATA OR LOST PROFITS, EVEN IF VELOSTRATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some States may not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply.
19. Allocation of Risks. The limited warranties, warranty disclaimers, exclusive remedies and limited liability provisions set forth herein are fundamental elements of this Agreement and the Services provided hereunder, and allocate risk under this Agreement between you and Velostrata in light of the fees charged by Velostrata for provision of the Services.
20. Third Party Software. The Services and Software may use or include Third Party Components. Your right to use such Third Party Components as part of, or in connection with, the Services and Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components, contained therein or related thereto. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components shall prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and shall be subject to any and all limitations and conditions required by such third parties. Under no circumstances shall the Services or Software or any portion thereof (except for the Third Party Components contained therein) be deemed to be “open source” or “publicly available” software. Certain Third Party Components’ licensing obligations and/or notices are provided for your informational purposes in connection with the Services at the following URL: http://velostrata.com/3rd-party-terms.
22. Term and Termination. This Agreement is effective upon your clicking the “ACCEPT” button, subscribing to the Services and/or using the Services, and shall continue until terminated. Velostrata may terminate this Agreement with immediate effect at any time upon the giving of written notice in case of any breach by you the terms of this Agreement or any other agreement between Velostrata and you that has not been cured within fifteen (15) days following a written notice thereof from Velostrata. You may terminate this Agreement upon the giving of written notice at any time that is within fifteen (15) days of Velostrata’s failure to remedy a confirmed Warranty breach within the remedy period stipulated in Section 17 above. In addition, Velostrata may terminate this Agreement or any part of the Services or support at the end of the period for which you last paid subscription fees for the applicable Services or support. Upon termination of this Agreement for any reason, you will no longer have any rights to use the Services and Velostrata will discontinue all access. Furthermore, you must delete all copies of the Software from your systems and Cloud Computing Services and confirm to Velostrata in writing that you have done so. All provisions hereof that by their nature should survive termination of this Agreement shall survive termination of this Agreement, including Sections 5, 12, 14, 16, 18, 19, and 23-26.
23. Force Majeure. Neither party shall be liable for any costs or damages due to nonperformance under this Agreement, arising out of a Force Majeure.
24. Governing Law & Jurisdiction. This Agreement shall be construed and governed in accordance with the laws of the State of California, USA, and the appropriate state or federal district courts located in the State of California, USA shall have exclusive jurisdiction in any conflict or dispute arising out of this Agreement, provided, however, that nothing in this Agreement shall be deemed to preclude Velostrata from bringing any suit, enforcing any right or taking other legal action in any other jurisdiction in which you operate.
25. Notices. All notices to be sent to you by Velostrata under this Agreement or for any purpose relating to this Agreement will be sent to the email address you provided when subscribing to the Services, and all notices delivered as aforesaid will be deemed received one day after they are sent.
26. Miscellaneous. This Agreement represents the complete agreement concerning the license granted herein and the subject matter hereof and may be amended only by a written agreement executed by both parties. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party of such rights or actions or as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Without derogating from the generality of the foregoing, failure by Velostrata to timely invoice or bill you for any use or Order of Services shall not preclude Velostrata from invoicing or billing you for such use or Order at any time in the future and shall not release you from any payment obligations with respect to such use or Order. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. You may not assign your rights or obligations under this Agreement without the prior written consent of Velostrata. Velostrata may assign or transfer its rights and/or obligations under this Agreement without restriction or notification.
I HAVE READ AND UNDERSTOOD THIS END USER SERVICES AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.